GCHC NEWSLETTER MAY 2017

Grimes County Historical Commission

Issue 4 Volume 3 May 2017 Meetings of the Grimes County Historical Commission are held on the Second Monday of the Month at 6:300 pm in the Courthouse Annex in Anderson, Texas Contact Information Joe King Fultz joe@tpfinc.com Visit us on Facebook https://www.facebook.com/Grim esCountyHistoricalCommission

Photo of the Month

Grimes County Historical Commission Executive Board Chairman Joe King Fultz Vice Chairman Susan Boudreaux Secretary Vanessa Burzynski Treasurer Bob Goldstein

COMMITTEES Historical Markers Denise Upchurch Historic Preservation Sarah Nash

Navasota, Texas Railroad Street Circa 1910

Newsletter & Publicity Vanessa Burzynski Volunteer Committee Susan Boudreaux

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

The Galveston Daily News (Galveston, Texas) April 15, 1869 Citation In the District Court, Galveston County, Spring Term 1869 No. 3970 Dugald McAlpin, plaintiff Vs. Gustave Ranger and Morris Ranger, defts.

The State of Texas to the Sheriff or any Constable of Galveston County, Greeting: Whereas, on the 19th day of October, A.D. 1868, the said plaintiff, Dugald McAlpin, filed his petition in our District Court for the County of Galveston, complaining of Morris Ranger and Gustave Ranger, and among other things, alleging, in substance, therein that on the sixth day of November A. D. 1866, the said defendants did rent from plaintiff his plantation and a large tract of land, situated in Grimes County, Texas, for a term of years, and did contract and agree to purchase from plaintiff all of his stock of Cattle, Horses, Mules, Mares and Colts, also the Farming implements and utensils on said plantation, and to pay the value thereof in gold dollars, on the first of January following; the value of such stock of cattle, horses, mules, mares and colts and of the said farming utensils, to be ascertained by two disinterested persons to be selected by the parties, plaintiff and defendants; that in pursuance of said contract and agreement, and in conformity therewith, the said stock of cattle, horses, mules, mares and colts, and the said farming utensils were duly appraised by J. H. Morrison and Joe H. Dunham, which appraisement and valuation was approved and accepted by the parties, and that said defendants paid thereon the sum of four thousand dollars, or thereabouts, leaving a balance of about four thousand dollars due and unpaid to plaintiff; and plaintiff alleges that said defendants are indebted to and justly owe him the sum of four thousand dollars in gold coin with interest thereon from the s1st day of January, A.D. 1867 which said sum of four thousand dollars, gold was during the said month of January, 1867 of the value of six thousand dollars in the legal tender currency of the United States; that said defendants have failed and refused to pay the said sum of four thousand dollars and the interest thereon, and that the whole amount hereof is due and owing to petitioner.

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And the said Dugald McAlpin having made oath that the defendant Morris Ranger is absent from the State of Texas.

These are, therefore, to command you that you summon the said Morris Ranger to be and appear before the Honorable the District Court, at a term thereof to be holden in and for the County of Galveston on the thirteenth Monday after the first Monday in March, A. D., 1869, then and there to answer the plaintiff’s petition by causing this writ to be published in some newspaper published in the County of Galveston for the full space of four weeks preceding the first day of said term of said District Court. Herein fail not, and of this write make due return, certifying how you have executed the same.

Witness, John S. Jones, Clerk of the District Court, in and for Galveston county and the Seal of said Court, this the 26th day of March, A.D. 1869.

Attest: John S. Jones, Clerk D.C.G.C. A true copy of the original I certify.

Frank Dirks, Sheriff Galveston County

The Galveston Daily News (Galveston, Texas) November 3, 1893 Holdup, Runaway and Arrested Navasota, Tex., Nov. 2 – Lee Blackshear was held up on the edge of town and robbed of $19 by an unknown negro.

A horse driven by Mrs. Manwaring became frightened, upset her buggy and injured her quite seriously.

A new paper, the Knights of Liberty Alliance, is to be published here soon.

Jackson Bowen was arrested accused of shooting at Alex White through a window of his house. White was not hurt.

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

The Galveston Daily News (Galveston, Texas) November 11, 1893 Before Judge Aleck Boarman, in the circuit court of the United States yesterday, the trial of a notable damage suit was begun, and was there are many witnesses called by both sides, the trial will probably occupy several days. The case is one in which Frederick E. Hamilton, formerly a citizen of Navasota but now a citizen of the state of Minnesota, sues some sixty citizens of Navasota and Grimes County for damages, growing out of the arrest and prosecution of Hamilton upon charges of arson and burglary. The petition of the plaintiff sets out the story of his case as follows.

The United States of America, Eastern District of Texas, in the circuit court of the United States at Galveston, Frederick E. Hamilton vs. Walter N. Norwood, et. Al. To the Honorable Judges of the Circuit Court of the United States within and for the Fifth Circuit holding session at Galveston; Your petitioner, Frederick E. Hamilton, a citizen of the state of Minnesota, complaining of Walter N. Norwood, Thomas C. Foster, William J. Foster, Robert B. Templeman, Ward Templeman, W. Lawrence Steele, W. Michael Anderson, Robert R. Anderson, Ferdinand W. Brosig, James M. Shaw, Philip A. Smith, William E. Barry, William H. Brown, Howard Barry, Stephen J. Walker, Hugh H. Wilson, James W. Rudes, J. Henry Gudger, John M. Ackerman, H. A. Jacobs, whose Christian name is unknown, Samuel M. Cook, Shields B. Rucker, Alfred H. Ketchum, Thomas M. Owen, Jesse Youens, Robert A. Horlock, Charles W. Stuart, Samuel L. Wilson, Allen Jones, Edward L. Bridges, Judson J. Felder, Arthur Wilson, Mortimer Smith, R. J. Drake, whose Christian name is unknown, David W. Hardy, Joseph Jacobs, W. S. Ashe, whose full name is unknown, George S. Wood, John e. Hill, Robert Brown, Cooper S. Taliaferro, Robert P. Owen, G. F. Thorndill, whose full name is to petitioner unknown,, George L. Conoly, Henry Schumacher, Henry D. Schumacher, Jesse B. Lott, Robert K. Lockett, James T. Lott, Robert B. S. Foster, Jr. Joel W. Terrell, Abraham W. Kennard, Fayette Smith, August Heineke, Thomas Barry, Charles V. Vaughan, Robert D. Blackshear, John W. Leake, D. P. Wilkerson, whose full name is to petitioner unknown, John T. McGinty, Horace N. Bissell, W. G. Milroy, whose full name is to petitioner unknown, P.

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K. Lott, whose full name is to petitioner unknown, citizens of the County of Grimes and the State of Texas, hereinafter styled defendants, most respectfully represents that he has been greatly wronged, injured and damaged by the said defendants in this that heretofore, to-wit; on the 11th day of April 1892, petitioner, who is a native Texan, then being and for a long time prior thereto having been a resident of the county of Grimes and state of Texas, was by the wrongs, malice and persecution of said defendants, acting together and by the acts and designs of said defendants, acting together and in conspiracy and confederating with divers other persons to plaintiff unknown, falsely imprisoned and maliciously prosecuted his business and credit, destroyed and virtually driven from his home and the companionship and support of his aged mother, with whom he had always lived, and from the county in which he had lived all his life, and compelled to take up his residence in another state without justifiable cause or warrant, under the following circumstances and in the following manner.

In this, that on the morning of the 10th day of April 1892, a disastrous fire occurred in the town of Navasota, in Grimes county, which resulted in the destruction of three business houses in the said town, including the place of business of plaintiff, which contained about 300 bales of cotton, of which plaintiff was the bailee. That immediately following said fire, without probably cause therefore, defendants conspiring together procured the arrest of plaintiff upon three false and malicious charges, one for burglary and two for arson – and caused warrants of arrest to be issued for the body of plaintiff from the court of W. M. Forrester, a justice e of the peace within and for the county of Grimes and state of Texas, and caused your petitioner to be arrested by virtue of said warrants and imprisoned in the county jail of Grimes County as a common felon, and that as a part of their said conspiracy said defendants, acting together, sought by threats, intimidation and persuasion to prevent friends of petitioner from becoming bail for his appearance to answer said charges which had been most wrongfully and maliciously made against him, it being the purpose of said defendants that he should be kept in jail in order that he might be thereby incapacitated from such preparation of his defenses as would result in his vindication, as against the cruel, wrongful, false and malicious charges which they, the said defendants had preferred against him, and to this end said defendants influenced the said justice of the peace to require bail of plaintiff in the

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

sum of $5,000 from which excessive bail plaintiff was released on habeas corpus by the order of the honorable judge of the Twelfth judicial district.

And following the aforesaid wrongful and malicious purposes and as part of their said conspiracy, upon the assembling of the next grand jury within and for the county of Grimes and state of Texas, said defendants by false and malicious testimony which they procured and caused to be adduced before said grand jury, procured and caused to be presented by said grand jury three several bills of indictment, which were duly presented and filed in the district court of Grimes County, wherein on two charges plaintiff was twice indicted for arson, and once for burglary, in utter disregard of the law of the land and the sacred rights of citizenship, under the guise and pretext of acting in aid of law and order, and to further their said conspiracy and malicious purposes and designs said defendants employed eloquent and able counsel at law to prosecute your petitioner, notwithstanding the state was ably represented by a capable and able district attorney. And upon the 18th day of July 1892, in the district court of Grimes County, your petitioner was arraigned and placed on trial under the indictment which defendants had procured against him for burglary and upon which by the wrongs and malice of said defendants, he was tried and energetically and actively prosecuted by the able and eloquent private counsel whom said defendants with their wealth and influence had employed to prosecute him, your petitioner; that after a long and exhaustive trial your petitioner was on the 21st day of July 1892, acquitted and vindicated by the verdict of a jury and the judgement of the court as against said indictment, and so complete and exonerating was your petitioner’s defenses that recognizing the wrongs to which he had been subjected and the cruel persecutions which had been inflicted upon him, the state of Texas, acting by and through its law officer, with the full concurrence of the presiding judge, dismissed from the docket of said court the two indictments pending against the petitioner for arson.

Your petitioner represents that for many years prior to the commission of the wrong and injuries against him, by said defendants, as hereinbefore detailed, he was a prosperous and successful business man in the town of Navasota, Texas from which business which was that of receiving and forwarding merchant, he made annually for than $2,000 clear of all expenses, which business has been totally destroyed by said prosecutions. That in making his defenses against

PAGE 4

said indictments petitioner was subjected to the sum of $8,000 expenses to meet which expenses he was compelled to sacrifice valuable property, consisting of his stock yard and a saloon which he owned.

Petitioner charges that he has sustained actual damages as the result of the wrongful and malicious acts of said defendants as hereinbefore detailed in the sum of $20,000, the value of the business destroyed by them, and the further sum of $3,000 the expenses to which he was subjected in making his defenses as aforesaid in the loss of accounts against sundry debtors which were outstanding and which could have been collected had petitioner been allowed to continue business to the amount of $1600. That in addition to his actual damages as hereinbefore stated, plaintiff charges that he as been subjected to great mental suffering and injury to his feeling, his character as a man of honor, as well as a business man, traduced whereby he has sustained further actual damages in the sum of $10,000 wherefore plaintiff charges that he has sustained actual damages at the hands of said defendants in the full sum of $34,000. Plaintiff further avers that by reason of the gross wrongs, cruelty, reckless and malicious acts and conduct and trespass of defendants as herein recited, which resulted in the destruction of plaintiff’s business in driving him from home, sacrificing his property, branding him as a felon, imprisoning him in the common jail of Grimes County, disgracing him with many men who had theretofore held him in good esteem, he has sustained injuries at the hands of said defendants which entitle him to exemplary damages, for which her herein sues and estimates the amount thereof at $30,000 in addition to the actual damages as herein stated and claimed, making a total of $64,000 for which this action is brought and judgement prayed for. Premises considered, plaintiff prays process of citation to each and all of said defendants, and for judgement for the sum of $34,000 his actual damages as aforesaid, and for the sum of $30,000 as exemplary damages, and for all costs about this suit incurred, and for such other and further relief as to law, right and justice pertain, and as in duty bound, your petitioner will every pray, etc. Wheeler & Rhodes and Lock McDaniel, Attorneys for plaintiff.

When the case was called up by Judge Boarman yesterday morning, Mr. Rhodes, one of the plaintiff’s attorneys introduced to the court Hon. Lock McDaniel of Grimes County, associated with him in the case and his name was entered upon the roll of attorneys of the court.

Messrs. Lovejoy and

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

PAGE 5

Sampson were also announced as attorneys for the plaintiff.

which the exceptions of defendants had been sustained by the court.

Mr. Rhodes then announced that the plaintiff was ready for trial. Messers. Hume and Kleberg, General H. H. Boone, and Hon. J. C. Hutcheson of Houston, representing the defendants, asked leave to die the defendant’s first amended original answer, which being done, they announced ready for trial on behalf of the defense.

The deaths of Frederick W. Brosig and Samuel L. Wilson, two of the defendants, were suggested and as to these the plaintiff asked the court to enter an order of dismissal.

Judge Boarman ordered a jury drawn, and while waiting for the return of that order, Major Hume presented some exceptions and demurrers to the petition. He offered a general demurrer to the entire petition and especially excepted to the allegation setting up $3,000 for expenses incurred in making his defense to the charges of arson and burglary made against him in Navasota, and also specially excepted to the allegation of $1,000 damages by reason of loss of accounts which might have been collected had he been permitted to continue his business in Navasota.

Mr. Rhodes for the plaintiff, announced that he was willing for this last special exception to be sustained.

Judge Boarman sustained both the special exceptions and overruled the general demurrer interposed by the defendants.

The plaintiff excepted to the court’s fueling on the exception of the defendants to the item of expenses and counsel fees, and the defendants excepted to the ruling on this general demurrer.

A list of jurors was furnished the attorneys on each side, and the work of selecting a jury was begun. On account of the return of some jurors previously excused whose names were not on the lists, the names of the jurors were returned to the box, which was shaken up and a new list prepared. From the new list, the following were drawn and impaneled as jurors to try the case.

D. W. Bancroft, Allen Alexander, J. G. Arnundsen, W. H. Love, Sr., Darney Donnelly, Dave Chapman, D. S. Chandler, Henry Walters, Jr., H. Houser, Thomas Donnelly, Wm. Melth, Thomas Doyle.

The jury having been sworn and taken their places, Mr. Rhodes proceeded to read the plaintiff’s petition as above given, excepting the counts of $3,000 for expenses and $1,000 for uncollected accounts, to

Major Hume at the conclusion of the reading of the petition, announced that the defendants denied the allegations of plaintiff’s petition and pleaded not guilty. He requested that a stenographer be sworn to take down the testimony and proceedings had in the case, and Mr. Whitaker of Houston was sworn for this work. Judge Boarman asked to whom the stenographer’s fees were to be taxed, and after some discussion it was agreed that they be charged to the defendants.

The introduction of evidence was then begun, the first testimony offered by the plaintiff being documentary. The first of this testimony were certified copies of the affidavit, capias return and proceedings before the justice of the peace in Navasota in a case charging Hamilton with arson.

Major Hume objected to the copy of the justice e’s docket in the case certified to by the district clerk, contending that it was a copy of a copy and the proper method would have been to bring a certified copy from the justice himself, who is the custodian of the original.

Mr. Rhodes contended that it was certified to as a copy of a record on file in the office of the district clerk of Grimes County, and as such was admissible under article 2252 of the Revised Statues.

Judge Boarman ruled the evidence admissible, and it was introduced; also, an affidavit by A. W. Kennard dated April 10, 1892 charging F. E. Hamilton with the crime of arson, next an affidavit

by W. N. Norwood, dated April 20 1892 and the proceedings thereunder accusing Hamilton of the crime of burglary.

Next was the petition of F. E. Hamilton to District Judge N. G. Kittrell for reduction of the $5,000 bail fixed by the justice of the peace in the first case of arson, the petition dated April 19, 1892. Next was Hamilton’s bail bond for $2000, to which sum has bail had been reduced by Judge Kittrell. Then followed in order three indictments presented by the grand jury of Grimes County, June 3, 1892, one

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

charging burglary and the other two arson.

Accompanying these were the records of the trial of the charge of burglary, which resulted in an acquittal, and the other two cases were dismissed.

This completed the plaintiff’s offer of documentary evidence and the introduction of oral testimony as begun by the calling of the plaintiff F. E. Hamilton to the stand. Before he was examined, however, his counsel requested that the rule be enforced against all the witnesses in the case except such as were defendants in this suite, who, of course, were entitled to remain in the courtroom. The rule was enforced and the marshal called the roll of witnesses and piloted them out of the court room.

Mr. Rhodes then begun the examination of Hamilton, who in response to the questions propounded, testified substantially as follows: His name is Frederick E. Hamilton, and he is the same Hamilton who was indicted by the grand jury of Grimes County in the district court of that county in June 1892. On the night of April 10, 1892, a disastrous fire occurred in the town of Navasota, which destroyed three places of business, one of which was the place of witness. That fire occurred between 3:30 and 4 a.m. during the night of April 10.

Witness was at home asleep at the time that fire occurred; had reached his home about 1:30 that night and gone immediately to bed; lived some 500 or 600 feet from scene of fire; was awakened by his mother and heard several pistol shots, but as the whistle of the mill did not blow concluded there was no fire and did not get out of bed until his mother came again and told him he had better go to the fire; he got up, put on his breeches and coat and went out, meeting J. H. Freeman just as he went out of his gate and walked with him to the fire. Upon reaching the fire he assisted in putting it out and was seen by a number of citizens. Witness’ business was that of receiving and forwarding merchant and he owned the charges on cotton placed in his warehouse; he had besides two or three bales of damaged cotton in the house on the night of the fire; he had seeds, cotton trucks, stationary, etc. in the warehouse worth altogether probably $300 to $500 with a safe included; carried no insurance at all, which fact was made known after the fire to many people; had been engaged in the receiving and forwarding business some six or seven years and did quite a large business, having received nearly 8000 bales of cotton during the season up to the night preceding the fire.

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Major Hume interrupted at this point to ask what was the object of this testimony.

Mr. Rhodes responded that they proposed to show that there was no probably cause for the accusations made against Hamilton. Major Hume said he thought it irrelevant.

The court said it was pertinent and admissible, and Hamilton continuing his testimony said that the year before the occurrence of the fire, he had made clear from his business $3500 or $4000 and that the farming community of Grimes County had the utmost confidence in him and hauled their cotton to him. That the fact that Freeman accompanied him from his home to the fire was known to Norwood and others and was talked about by quite a number of citizens; that prior to his arrest upon the affidavit made by Kennard he knew that he was suspected of complicity in owning he warehouses; he first knew that he was suspected on Monday, the fire having occurred on Sunday; learned it about dinner time Monday, when Major Yarborough whom he met on the street told him he was suspected of setting the buildings on fire; witness told Yarborough he was innocent and that his mother had awakened him when the fire was discovered, and he had gone to it in company with Freeman.

Did not hunt Yarborough up to tell him this, but told him when he met him on the street. Never heard of the fire inquest before or at the time it was held, and the first information he got of it was when D. D. Greer constable of the Navasota precinct, sent up to his house about 6 o’clock or 7 o’clock on Monday evening and asked him to come down town and when witness responded and came down town Greer placed him under arrest; that the fire inquest made no inquiry of witness and he had no opportunity of going before that inquest and making a defense against the charge; that Mayor Yarborough of the town of Navasota made the affidavit on which the fire inquest was held; no one told witness anything about that inquest until after his arrest. Witness had heard the testimony of Norwood and Kennard given at the trial of witness in the district court of Grimes County upon the charge of burglary. At that trial Kennard had testified that he (Kennard) had been impaneled as one of the judges in the fire inquest and that the first witness before the inquest was Seaborn Stoneham, who had said that witness was the man who had set fire to the building and that Stoneham had told at the inquest that a negro named Kibble knew all about it; that Kibble had been taken before the inquest and had said that he knew nothing

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

about the fire, but was in a gambling room over a saloon owned by Hamilton when it occurred; that then Stoneham had been recalled and repeated his former testimony; then the negro was recalled and he repeated his story denying any knowledge of the fire; that Stoneham had been recalled a third time and again told identically the same story as at first; the negro was then brought back a third time and told that if he didn’t tell all about that fire he would be sent to jail and would stay there, and on that the negro had corroborated Stoneham’s evidence.

Hamilton said that Kennard had also deposed that he had said he would be reluctant to find charges against any man on Stoneham’s testimony; that Stoneham’s was to the effect that the negro Kibble and witness Hamilton went into the warehouse and had a conversation in which Hamilton told the negro that “this house must go tonight” and then poured kerosene all on the cotton.

Hamilton said that Norwood also testified against him on his trial for burglary, and that his testimony was that early Sunday morning Stoneham had come to him (Norwood) and asked him what he would give if he would tell him who burned his house, and Norwood had said he would give a good deal, that then Stoneham told him he knew who did it, and Norwood had gone with Stoneham to where Mayor Yarborough was standing against a platform and Stoneham repeated his statement, but wanted money to tell who it was had fired the buildings, saying he needed money to get out of the country; they gave him no money, but had Stoneham put under surveillance and on Sunday night Mayor Yarborough, Norwood and others had met Stoneham in the rear of a saloon and from there adjourned to the mayor’s office upstairs, where Stoneham had described Hamilton as the man, but would not give his name and did not give Hamilton’s name as the incendiary until Monday morning at the fire inquest.

Hamilton deposed that he had known Stoneham from childhood; he was now about 22-year-old, that Stoneham had lived a very dirty, low down, villainous life, and never did an honest day’s work in his life, and that this was well known in the community; that his reputation for telling the truth was bad, and was so universally known, was known to the defendants as well as to others in the community; that there were witnesses who testified at the trial to Stoneham’s bad character.

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Major Hume objected to the last statement and quite an argument followed. The court asked what plaintiff’s counsel proposed to prove by this testimony. Mr. Rhodes “I want to get out just what these witnesses wore and propose to show by that testimony which we have here as taken by a stenographer and verified, that this man has been charged in that community with every crime in the calendar, except perhaps, the crime of rape.”

The court: “You want to show us I understand it that this man Stoneham was such a man in that community as no reputable man would base a charge against another on his evidence unsupported?”

Mr. Rhodes: “Yes sir, that is just what we want to prove”.

Major Hume: inadmissible”.

“That

seems

to

me

clearly

Mr. Rhodes then put his question. “On the trial of that case in the district court was the testimony of Stoneham impeached? If so, by whom?”

Counsel argued over this objection for a time and the court admitted the question. Then a ten-minute recess was taken. When court sat again Mr. Rhodes resumed the examination of Hamilton with this question: “When you were tried on July 18, 1892, at Anderson, who testified that you fired the house?”

Answer: “Stoneham testified that I was there, but he said he did not see me touch it off. Henry Kibble, the negro, also testified connecting me with it.”

Question: “Was there any testimony by citizens of Grimes County as to the reputation for truth and veracity of Seaborn Stoneham?”

Answer: “Yes, Abner Eubank, I. Sock, Sam Madley, D. D. Greer, J. H. Stacy, J. W. Teague and R. G. Deadrick testified.”

Hamilton testified that these men had lived in Navasota for years and had known Stoneham for a long time; that Stoneham was raised in Navasota; that there had been other fires in the place prior to that of April 10 and suspicion had attached to Stoneham as the incendiary.

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

He was asked if Stoneham had on the stand testified confessing that he had set fire to a house.

This was objected to and the objection sustained.

Hamilton said the opinion was general in the community that Seaborn Stoneham was the incendiary; that the lot on which a house had been burned formerly belonged to Stoneham’s brother, who had acquired it by his uncle’s will and that Stoneham’s brother had also owned a three-quarter interest in the warehouse, which he has sold to Norwood.

Hamilton testified that he did a large share of the receiving and forwarding business of Navasota and for the three years preceding the fire his business had been constantly growing. He said that there was ill will existing against him in the community and on the part of some of the defendants; that this grew out of the contest between the town of Anderson and Navasota for the location of the Grimes County Courthouse, which it was sought to move from Anderson to Navasota; that nearly all of the defendants favored the removal and were active in the contest except W. E. Barry; that the vote was about 5017 in that election and the voting capacity of the Navasota precinct was between 500 and 1000; that he refused to take any part in the contest and had announced the means resorted to as an outrage that a number of the defendants were instrumental in securing the vote for Navasota; that they wanted him to contribute to the fund for Navasota, and then wanted him to be a clerk of the election, but he refused and next they wanted him on election day to stand at the chute they had for running the voters down and stop the Anderson crowd from seeing what was going on; that they wanted him to do this because he was a large man and would stop the hole, but he declined and his brother succeeded to the position. That there was a perceptible difference after this in the treatment accorded him and his business was affected. That he had waived an examination when he was first arrested because he believed he would have been murdered had he gone into a preliminary trial; there was much excitement among the defendants on that occasion. He said there was other prejudice against him growing out of the November election because he refused to support and contribute to the election of Judge C. L. Kettler and that Kettler and another good lawyer were employed to assist the district attorney to prosecute him on his trial that after he waived examination he had been taken to jail at Anderson, ten miles from Navasota where he had been placed

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in a cell and suffered a great deal of humiliation and degradation; that he had lived in Navasota with his mother, was born in Washington County and raised in Navasota, and had expected to continue to reside there and carry on his business. That he had now moved to Minnesota to reside permanently.

This closed the direct examination of the witness and the jury was discharged for the day, to reassemble at 10 o’clock this morning to further consider the case.

The Galveston Daily News (Galveston, Texas) November 12, 1893 After devoting two hours to hearing the argument of Mr. Lovett in the railroad injunction suit yesterday, Judge Boarman at 11 o’clock sidetracked that case and took up the damage suit of F. E. Hamilton against W. N. Norwood et al., the trial of which was begun the preceding day. The plaintiff Hamilton, who is suing sixty-one citizens of the town of Navasota, Grimes county, for $60,000 damages for alleged wrongful prosecution and imprisonment on two charges of arson and one of burglary, was on the stand, his testimony, which was begun the day before, not having been completed.

Mr. Rhodes put a few more questions to the witness on direct examination, drawing from him that all the cotton in his warehouse which was burned belonged to other parties; that he was not short any cotton and had no knowledge whatever of who set the building on fire or of how the fire started; he was at home in bed when it was discovered; that he had really given bond in the sum of $5,000 when he was first arrested upon the affidavit charging him with arson, but when he was bound over by the magistrate on examining trial he could not find sureties, because pressure had been brought to bear upon people who would otherwise have gone on his bond. His first sureties would not go on his bond, thought he asked them to do so.

This completed the direct examination, and the witness was turned over to the defendants. Captain J. C. Hutcheson, one of the counsel for the defense, conducted the cross-examination and opened by asking Hamilton how many parties he had made defendants. Hamilton in reply to this and other questions said he had made sixty-three parties defendants in the suit, all of them citizens of

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

Navasota, except McGinty, Lott and F0ster, two of whom resided in Grimes county and the third, Lott resided in Washington county; that he thought the defendants were all men who would be guilty of any crime against him and in his opinion they would be guilty of any crime to gain their ends. He knew of no crime of which T. W. Brosig, one of the defendants, had been guilty, but thought he would be guilty of anything to accomplish his end; he knew James M. Shaw; he was cashier of the bank in Navasota when witness left there; did not know what his reputation was, but knew what his (witness’) opinion of him was and it was the same in reference to all the defendants in the case. Knew Old Man Schumaker; he was the owner of an oil mill, a gin, was president of the bank and superintendent of the Presbyterian Sunday school.

Captain Hutcheson: “Was it because he was superintendent of the Presbyterian Sunday school that you thought he would be guilty of any sort of crime?”

Witness: “No, not that; I base my opinion on my own observation.”

He deposed that he knew R. D. (Bob) Blackshear and entertained the same opinion of him as he did of the others. Mr. Lovejoy, one of the plaintiff’s counsel, objected to the character of questions being put by Captain Hutcheson and the court suggested that Captain Hutcheson should direct his inquiry not to what this man thought of the defendants, but to what was their standing in the community.

Captain Hutcheson said that one of the best ways to test a man’s character was by his estimate of good men and on that theory, he was willing for this witness to reflect his character to the jury by stating his opinion of these men whom he was suing.

Judge Boarman: suggestion.”

“That

is

a

metaphysical

An appeal was made to the stenographer’s notes as to what the witness had stated in the early portion of his cross-examination and then Captain Hutcheson continued his questions, eliciting from the witness that he had seen Lott, one of the defendants, caucusing in Navasota with others of the defendants after the witness’ habeas corpus trial on April 20, 1892, and knew Lott was against him, though he did not know that he had subscribed on the list they had going around.

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He was then questioned as to the time he went to bed on the night of the fire; saying that it was 1:30; he knew it because his mother had remarked upon opening the door for him that he was late and he had asked what time it was and was told it was 1:30. He said that he first heard that he was suspected of firing the buildings on Monday, about dinner time, from Mayor Yarborough, but upon further questioning said he recalled that he had heard from D. D. Greer the night before that he was suspected, and about 8 o’clock Monday morning had gone to Charley Stewart and told him that the citizens were holding a meeting and trying to make a charge against him (witness) and asked Stewart to go on his bond. He denied having called Yarborough and Greer into his saloon on Monday and had then called Yarborough aside and asked him about the charges against him, but insisted that he had met Yarborough on the street and the latter had volunteered the information that the witness was suspected of setting fire to the warehouses.

Continuing in response to questions, witness said: “Voting the republican ticket made prejudice against me. Waldo Smith got mad with me about the court house business. He said nothing offensive to me, nor did anything presumably offensive. They never came to me or about me, but my friends told me that there was ill will against me. I can’t remember any particular one who showed hostility toward me.

Might remember later. I said yesterday 50 cents per bale on cotton were my charges, but I gave some a rebate – some Germans I charged 10 cents only. Yes, it was the custom to charge some more than others.

I rebated, there was no tale in it. I came right out.

Kibble was not in my employ at the time of the fire.

H had been with me off and on for several months. I employed him more than others. On this Saturday Kibble was at the warehouse with me. After the fire took place the ties were counted while I was in the county jail of Grimes county. I did not have them counted and knew nothing about it. There were four bales of cotton which the cows ate considerable out of and the bales were weighed and the loss charged up to me. When I was arrested, and taken to Anderson I said nothing to Dr. Peeples about testifying that he had given me a narcotic. He was my physician and came to me when I got out of jail, saying if he could do anything for me he would like to do it. I did not ask him to testify in regard to my being fat. I’ve been in Simon Levy’s house, Joseph Brook’s house and others – as good men as ever lived. I was invited to see Dr. Peeples married. It is true that I have had in my mother’s house colored

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

prostitutes during my mother’s absence. I never associated with decent young ladies there because I had no inclination to do so. Bettie Crawford and I did live in prostitution but not in my mother’s house.

Bettie Crawford is a colored lady.”

Captain Hutcheson produced a picture and witness said it was a photograph of Bettie Crawford. Captain Hutcheson then introduced a letter written to Ella Armstrong, a colored woman, asking her to come and spend a few days with him, which the witness admitted that he had written. Other letters written by the witness were read.

The witness: “Let me look at that, please, to see if you did not emphasize some of it too much.”

The witness looked at the letter and handed it back, when the cross-examination was proceeded with. In answer to questions the witness said: “Bettie Crawford never slept all night in my mother’s house, nor any other prostitute. Neither did she sit in my lap where people outside could see her. The people there hate me because I would not help get the court house there. Other republicans there were not rejected by society, but they were not liked much.

Billy Barry, L. J. Wilson and myself didn’t take part in that fight. Billy Barry’s aversion to a republican is one of the causes of this suit against me. My friends in Navasota, before I left there, were numerous. (He named several.) I do not know how they are now.

Don’t think any of them are republicans. I don’t remember any republican friends I had right at this moment. Navasota has about 2500 or 3000 people.

I had social and business relations there that this prosecution interrupted. The people shunned me.

No, I never went with families there. I didn’t want to be a society man.”

Court here took a recess of ten minutes. Redirect examination: “Am not a society man; didn’t want to get into society; didn’t try. Remained at home and comforted my mother. Never seduced any one and never tried to. Never made an approach to any respectable woman. Never went on the premises of any of the defendants after a woman.”

“I could go in any store in Navasota, buy anything and say ‘Charge that to me.’ I never was refused.

When I left Navasota, I turned over my saloon to settle $1800 indebtedness. Have worked for Marx & Kempner and Ullmann, Lewis & Co. of Galveston, and resigned from the latter firm to go into cotton

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business in Navasota with Mr. Faulkner. Never was any dissatisfaction. I was traveling salesman. I collected moneys for them, and I have letters of recommendation from them. I suppose it was eight or ten years before the fire. When I left Ullmann, Lewis & Co. I went to Navasota and remained there until after the fire. After my acquittal, I went to St. Paul, Minn. And that is my home now. After the fire I had my place of business at my saloon. Two negroes carried the business on for me. My saloon was on Railroad Street. I left Navasota with $40 in borrowed money. I left Navasota in debt. I suppose I owe there now $100 or $200. I won’t mention the names. These defendants in this suit would credit me with anything I wanted. I never slept at night with a prostitute in my mother’s house.”

“I base the opinion that I have expressed of defendants on the fact that they were instrumental in polling 5017 votes in the town, when there were only about 1000 there. They imported voters from other counties by the trainload. And also from their action in the prostitution matter.”

Witness’ counsel here asked him if he knew if any defendants going after negro girls as he had done.

Major Hume objected on the ground that plaintiff had put his own character in issue, and the characters of the defendants were not in issue.

Counsel for prosecution withdrew.

“My property which I left in Navasota when to pay my debts. I never perpetrated a swindle on anybody in Navasota. I was as law abiding as any of ‘em.”

“The court house [I think he meant to say warehouse] was closed about dark on the evening of the fire. The one door was closed with a chain and padlock and the others with pins. No one then could get in the door. I couldn’t say that Mr. Norwood knew how the doors were fastened.”

Re-cross-examination: “I remember owing Charles Wesler of St. Louis, but I don’t remember the amount. Yes, that is my writing (inspecting a letter handed up by counsel).” Counsel here read the letter, which offered $100 for two certain notes due by F. E. Hamilton to Chas. Wesler, or telling him to get a judgment and then he would get nothing. Witness testified that he was sued for Wesler’s claims, and that judgment was obtained. That he finally settled them for 50 cents on the dollar.

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

“I went on Major Boone’s premises after negro women. He ordered me off, and I never went there again. I never was inside his premises after. Rode a gray horse to his place one bright moonlight night to see a colored man and his wife about getting back a colored girl I had been keeping.”

Witness here was dismissed. Mrs. M. M. Hamilton, mother of plaintiff, was introduced as a witness and sworn according to law. She testified as follows: “I am the mother of the plaintiff. I remember the fire in Navasota well. I can’t remember the day of the week. It was Sunday morning before day. My son came home at 1:30 that night. I let him in. I told him he was late. There was only a partition between the room of my son and myself. The door between our rooms was open. I heard the alarm of fire while he was in bed. He was asleep but I woke him up. He said I must be mistaken, because he had not heard the whistle. He went away and I saw nothing of him till after daylight. My son is a single man. We have lived together ever since he was born. He always as been kind and generous to me. He is my youngest.

Fred always bore the expenses of my housekeeping.”

“I was awakened when the fire alarm was given. I heard the pistol shots, which usually is the way of giving the alarm in Navasota. I had not slept from the time my son came in that night until the alarm of fire was given. I was sitting up reading. I was sure my son did not go out. He snores when asleep. I heard his heavy breathing after he fell asleep until the fire alarm was given. I had lived in that community since 1863.

Had known Seaborn Stoneham a year or two before the fire. His reputation for truth and veracity was very bad so far as I had heard. It was the general talk in the community. None of the citizens or defendants ever came to me and made any inquiries as to where my son was the night of the fire.”

Witness dismissed without cross-examination.

Court here adjourned the hearing of the case to Monday morning at 10 o’clock.

The Galveston Daily News, Texas) November 15, 1893

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(Galveston,

At 2 o’clock yesterday afternoon the case of Frederick E. Hamilton vs. W. N. Norwood et. Al. was resumed in the federal court, Judge Boarman presiding. The deepest interest is manifested in this case and the court room was crowded all during the afternoon. Nothing of a sensational nature was developed, however, the testimony being depositions of witnesses who were not present.

Judge Boardman: “It seems that one juror is not able to come into the court room.”

Mr. Rhodes: We can proceed with eleven jurors your honor. Of course, the sick juror is not to sit in the case anymore.”

Major Boone: “We are willing to proceed with eleven jurors.”

Mr. Rhodes” “The marshal will kindly get me the papers in this case.”

Mr. Anderson, one of the jurors came in and took his seat. Mr. Rhodes: “Your honor we offer in evidence some depositions taken by the plaintiff in this suit.

Judge McDaniel, will you have the kindness to read the interrogatories while I read the answers?”

The first deposition read was that of Allen Jones of Navasota, the substance of which is as follows: “I was out of town at the time of the fire, but returned the next morning. I know about the Hamilton prosecution, but had nothing to do with it. Citizens of Navasota had a mass meeting in regard to the matter and I was there. I think Hamilton was then under bond. I don’t remember whether the meeting agreed to have him arrested or not. I made no effort to prevent him from giving bond. Kettler and Buffington were the lawyers employed to prosecute Hamilton on the charge of arson and burglary. I suppose the citizens of the town employed them. I did not subscribe and neither did I take any personal interest in the prosecution. I do not know of my own knowledge of any one paying a cent of money for the prosecution. I have been in Navasota ten years and I am in no particular business. Once I was alderman of the town. I have known Hamilton twelve or fifteen years. His business was receiving and forwarding cotton. One year, I believe, he was a drummer.

When I knew him he made Navasota his home.

Foster and Norwood’s houses were burned. There

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

was cotton in both houses. I don’t know the value of it. The house belonged to James Denerne and the contents to various parties.

There was no investigation that I know of and I know nothing of the loss. I do not know who held the inquest, but I think it was Judge Forrester. I do not know who the jurors were. The matter created great excitement among the people of Navasota. There was much talk about it. It was from no other motive than that of having Hamilton convicted if guilty or to clear him if innocent that the proceedings against him were instituted. I had no reason to suspect his guilt except from his general character. I don’t know ow the fire of the warehouse belonging to Hamilton originated.”

The deposition of H. Shumaker read as follows: “I reside in Navasota. I remember the fire there. I know about the criminal prosecution of Hamilton.

Yes, there was a mass meeting or indignation meeting, of the citizens and I attended. At that meeting, it was determined that Hamilton ought to be arrested and prosecuted for the crimes of arson and burglary. It was also decided to raise money with which to employ counsel for the prosecution. I believe Hamilton was under arrest when the mass meeting was held. I agreed to subscribe to the fund, but took no action otherwise. I did not try to prevent his making his bond. I do not know who employed the lawyers or who paid them for their services. I did not subscribe a definite sum myself. Being absent at the time, I took no active interest in the matter. I do no know who furnished the money for the prosecution or how much money was furnished. I have resided in Navasota since 1865. I manufacture cotton seed oil. I have been alderman of Navasota two terms. I have known Hamilton for fifteen years or more. He was h ere in Navasota during that time and was in the warehouse business. He never moved away from Navasota so far as I know. Two rock warehouses adjoining his were practically destroyed – one belonging to Norwood and the other to Forrester. I can no say who the contents belonged to. I can’t say what Hamilton claimed to have lost or that there was any investigation. I think the inquest was held before Judge Forrester. I don’t know who the jurors were. I only knew from hearsay what the witnesses at the inquest testified. The verdict of the jury was that Hamilton set the house on fire. I can’t say who made the complaint or whether he tried to give bond or not. The matter excited great interest and the testimony of the witnesses was the subject of general talk and comment. The proceedings were after Hamilton’s arrest. The only motives prompting the prosecution were to uphold the law and give him

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a fair and impartial trial. I believed he was guilty as charged from his general bad character. He was known to be short in cotton. His platform was burned the year previous under suspicious circumstances. I don’t know what his loss was. The fire was evidently incendiary. I can’t give any of the particulars of it.”

W. H. Brown’s deposition was only partly read. It stated that he subscribed no money for the prosecution, and that he did not attend the indignation meeting. He took no active interest in it.

Mr. Rhodes of the counsel for Hamilton said they would ask no judgement from Brown and his deposition was passed over. It may be called up the opposing counsel.

Thomas N. Owens’ deposition was as follows: “I reside in Navasota, but was absent in Arkansas at the time referred to. I knew of the fire only from hearsay. I took no part in Hamilton’s prosecution.

My [son?], however, subscribed $20 for his prosecution. We took no further interest in it. I can’t say of my own knowledge who contributed and how much was contributed. I have been living in Navasota for fifteen years. I am a merchant and in the commission business. I have known Hamilton for fifteen or twenty years. He was in the warehouse and beer business. Part of the time he lived in Galveston. He left Navasota shortly after his trial and has never returned here to live. Two more houses adjoining his were burned. They were worth $1,000 or $3,000 each. Neither the houses or the contents belonged to Hamilton. They belonged to Deverne. I don’t know what Hamilton claimed to have lost. Don’t know anything about it.”

F. W. Brosig: “I reside in Navasota and remember a fire in which a warehouse was burned that belonged to Hamilton. I have no connection with his prosecution. I know nothing about the matter of my own knowledge. I was at the meeting of citizens and participated as a citizen of Navasota. It was agreed to raise money with which to employ counsel to assist the district attorney, who was a non-resident of the county. I had no part in the prosecution. I made no effort to prevent Hamilton from giving bond. C. L. Kettler and T. C. Buffington were the lawyers employed. They were paid by the citizens. I contributed $5 for the prosecution in the district court. I had no further interest in the matter. I don’t know the amounts contributed by the different parties. I have $25. I have lived here in Navasota since 1855. I have been in the hardware business

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

and have held no public office. I have known Hamilton since 1866. He has been in Navasota most of the time. He was in the commission business. A few weeks after the trial he ceased to live here and he has not returned here to live. I never heard that Hamilton claimed to have lost anything by the fire.

My information relative to his guilt was obtained as a member of the grand jury. I think the fire was incendiary.”

W. N. Norwood’s deposition: “I know of the fire. I had no connection with Hamilton’s prosecution. I did not attend the citizens’ meeting and do not know what was done there. I think Hamilton was arrested before the meeting. I preferred a charge of burglary against Hamilton.

I subscribed $25 for his prosecution. I took no personal interest in it further than to appear before the grand jury and give testimony. I do not know who waited on Buffington to employ him. I made the affidavit against Hamilton for burglary and M. P. Yarbrough made an affidavit against him for arson. I have resided in Navasota since 1854. Have been in the drug and warehouse business here. I have also been alderman and chief of the fire department. I have known Hamilton since 1884. He left Navasota shortly after the trial. The jury of inquest in his case was composed of some of the best citizens of the town.

The jury found that Hamilton set fire to the house.

The fire excited great interest and much comment in Navasota.”

The above testimony was brought out by questions and was read in court, the questions being omitted in this report and the answers printed. Depositions of R. R. Templeman, Fayette Smith, Chas. W. Stuart.

R. A. Jacobs and S. B. Rucker were also red, but their testimony does not differ materially from that of the other witnesses. There are about thirty more depositions to be read and the reading will be proceeded with tomorrow morning at 10 o’clock when the court reconvenes.

The Galveston Daily News, Texas) November 16, 1893

PAGE 13

(Galveston,

The case of F. E. Hamilton against W. N. Norwood and other citizens of Navasota for damages was resumed in the United States circuit court yesterday morning.

Before the submission of testimony was begun District Attorney R. E. Hunnay rose and stated to the court that he had just received notice that Dave Chapman, one of the jurors in attendance on the court, had died during the morning, and he requested the court to enter an order authorizing the payment of the fees due him as juror to his wife or other legal representative, the statue providing that jurors’ fees must be paid to the jurors in person.

Judge Boarman said that he had also received notice of Chapman’s death and would direct the payment of fees due him as requested.

Chapman was a juror from Colorado county, was taken sick Monday and died about 3:30 yesterday morning at the Central Hotel. His remains were shipped to the home in Colorado county.

The Hamilton case was then proceeded with before a jury of eleven men. The first evidence offered was the depositions of Alfred H. Ketchum, a practicing physician of Navasota., whose testimony as of the same tenor as that of the witnesses whose depositions were read Monday, reciting his knowledge of the fire, which occurred in Navasota on April 10, 1892, destroying the warehouses of Hamilton and others, that he knew of the criminal prosecutions against Hamilton; made no effort to prevent Hamilton giving bond.

The next deposition was that of W. J. Foster to the same effect, that he had not made any effort to prevent Hamilton giving bond; had subscribed $25 toward the prosecution of Hamilton before the district court, was a member of the grand jury which presented indictments against Hamilton for burglary and arson; had lived in Navasota twenty-six years; the jury of inquest had returned a verdict finding that Hamilton had set fire to the buildings; was not at the meeting, but his understanding of its purpose was that the guilty party should be prosecuted; that the evidence of Stoneham and Kibble had made him believe that Hamilton was guilty.

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

The next deposition was that of James W. Rhodes, who testified that he had not made any effort to prevent Hamilton giving bond; his firm ad subscribed $25 toward the prosecution before the district court; he took no interest in securing the bills of indictment against Hamilton. He gave the names of a number who had subscribed toward the prosecution, but did not know how much each had subscribed; had resided in Navasota eight years.

The deposition of Horace N. Bissell was next introduced, but before its reading had been finished the court suggested that all these depositions seemed to state substantially the same thing and asked if it was necessary to read all of them in full.

The attorneys agreed that they could expedite the case by reading the material points of difference in the depositions, and then they concluded Bissell’s testimony.

J. HY. Gudger’s deposition was next; his firm subscribed $25, but took no active part in Hamilton’s prosecution; witness resided in Navasota and had known Hamilton twenty-one years.

Jesse Youen’s deposition told of a subscription of $25 to the fund for the prosecution and covered the ground gone over in the other depositions.

Thomas C. Foster stated in his deposition that he had subscribed $35 and was one of the citizen’s committee, Messrs, Schumaker and Brosig being the other members appointed by the citizens’ meeting to arrange for the prosecution of the party guilty of setting the fire; that Mr. Buffington had been employed to assist the prosecuting attorney, and that the reason for employing local attorneys for the prosecution was that the district attorney was a resident of another county and it was deemed necessary to place the prosecution upon an equal footing with Hamilton, who was represented by local counsel both at Navasota and Anderson, the county seat; that he made no affidavits himself; had resided in Navasota since 1867.

The depositions of J. M. Ackerman to the same general affect were read. S.M. Cook’s depositions were of the same general tenor; he had subscribed $25 and had been the treasurer of the city of Navasota.

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Philip A. Smith’s deposition stated that he had not subscribed toward the prosecution and had not participated in the citizens meeting; had resided in Navasota since 1866 and had known Hamilton ever since that time.

W. M. Anderson’s testimony stated that he had not attended the citizens’ meeting held after Hamilton’s arrest, and had subscribed $5 toward the prosecution.

These concluded the depositions of citizens and were rapidly run through by the attorneys, under the court’s suggestion to expedite matters.

Next came the depositions of the officers who figured in the proceedings and occurrences succeeding the fire of April 10, 1892. These were read in full and the first offered was the deposition of David G. Greer, constable of the Navasota precinct, who deposed that he was 37 years old, and resided in Navasota; he knew about the fire and about the criminal proceedings which followed; that the affidavits against Hamilton had been made by A. W. Kennard and W. N. Norwood, the former making one and the latter one or two he did not know about the citizens meeting nor did he know who contributed money to the prosecution. That he was the person who as constable arrested F. M. Hamilton on the complaints made by Kennard and Norwood; that he had first heard that Hamilton was suspected of having set the buildings on fire after the fire inquest which was held on April 11; had heard this from Seaborn Stoneham; that on the evening of April 10 Dick Black had walked into the Sunny South saloon in Navasota where witness was and said that Sebe Stoneham knew who had fired the buildings; that witness after hearing this went to the Gem saloon, where he found Stoneham and told him he had heard he knew who had set the fire and if he did he had better get a crowd and make the statement in their hearing; that Stoneham had said he was willing, and then that Mayor Yarborough had been sent for and came down to the saloon to see Stoneham; that Stoneham wanted to go to the mayor’s office and they went there; Stoneham stating after he reached there that he knew who had set the buildings on fire and giving Mayor Yarborough some questions to be put to the negro, Henry Kibble; that on Monday, Mayor Yarborough had requested a fire inquest, which as held and found that Hamilton fired the buildings. That upon this a warrant was issued upon the affidavit of Kennard for Hamilton’s arrest and witness had on

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

the evening of the day after the fire arrested Hamilton upon that warrant and had required him to give a bond for $5,000 which Hamilton had given, and he didn’t think that he had any trouble in giving it; that no one had made any suggestion to witness about making the bond; that Hamilton had been represented upon preliminary, the next day after his arrest, before Justice Forrester, by attorneys, had waived examination and requested the justice to fix his bond for appearance before the district court; Hamilton had not asked time to give the bond nor for any inquiry into his ability to make bond; thought Hamilton could have given the bond, but failing to give it he had been committed to jail; that he was turned over to the custody of witness about 4 or 5 o’clock in the afternoon and he had delivered him to the jailer at Anderson. Witness had also arrested Hamilton upon the complaint made by Norwood.

The depositions of W. M. Forrester, the justice of the peace at Navasota before whom the proceedings leading to Hamilton’s arrest were had, were next offered and read, being to the effect that deponent was 70 years of age, lived in Navasota, remembered the fire of April 10, 1892, and the criminal prosecutions following it; that the affidavit about the fire was made by A. W. Kennard and the affidavit charging Hamilton with burglary was made by W. N. Norwood several days later; that no one had told witness that he had taken any part in the meeting of citizens or contributed any money to the prosecution of Hamilton; that F. W. Brosig had requested him to make Hamilton’s bond $10,000 but he told Brosig that he had already fixed the bond at $5,000 and did not propose to change it; that W. E. Barry, J. J. Felder and Ward Templeman and seemed to witness to be the most active in the prosecution of Hamilton in the justice court; that witness was the Justice of the Peace in Navasota before whom M. P. Yarborough made the affidavit requesting a fire inquest; that Yarborough’s affidavit had been filed about 11 a.m. on April 11, 1892 and it’s nature and substance charged F. W. Hamilton with arson; that Yarborough had suggested Henry Kibble and Seaborn Stoneham as witnesses and upon the inquest they had been examined separately; that after the jury of inquest a warrant for Hamilton’s arrest had been issued, that J. G. McDonald, Jr. county attorney, had conducted the examination of witnesses at the fire inquest and that Kibble and Stoneham had testified that Hamilton set the house on fire; that the finding of the jury of inquest was that Hamilton had fired the premises; that the warrant for Hamilton’s arrest was placed in the

PAGE 15

hands of D. D. Greer, constable, about dark with instructions to require a bond of $5,000 from Hamilton; that Hamilton was arrested, gave the bond and appeared next morning before witness for trial; that Messrs. Neill and Meecham and Hon. Lock McDaniel had appeared as Hamilton’s attorneys; he had waived examination and requested witness to fix his bond; that bond had been fixed at $5,000 and as far as witness knew no effort were made to give it; thought Hamilton could have given the bond, because he had no trouble in giving the first bond required; that in default of bond, he had committed him to the custody of a deputy sheriff and the constable to be taken to jail; that bond had been fixed without suggestion or inference from any one.

The deposition of M. P. Yarborough, mayor of the city of Navasota, was next introduced. He testified to knowledge of the fire and the criminal proceedings; had made the affidavit for a jury of inquest and knew of the meeting held by citizens to discuss the fire; that meeting was attended by the best citizens of the town; the origin of the fire was discussed and a determination expressed to prosecute the guilty. He did not know who contributed money toward the prosecution; that the meeting was held and this determination reached after the testimony given by Kibble and Stoneham before the fire inquest; had become known to the public and after Hamilton had been arrested upon the warrant sworn out by Kennard. That from information received from Seaborn Stoneham witness had filed the affidavit for the inquest in order to determine the truth of the information. That Norwood had come to him on Sunday night and said that witness was wanted down town and he had gone to Lee’s saloon, where he found Stoneham, who said he wanted to leave the saloon and go to the mayor’s office to tell what he knew; that upon going to the office Stoneham had given him certain interrogatories to be put to Kibble and Stoneham had said that if the good citizens of the community would protect him he would tell who fired the warehouse; he told witness that Hamilton had fired it; witness had gone next morning in search of City Attorney Neill, whom he had failed to find, and had then gone to General Boone and told him of the information he had received, and General Boone had referred him to the statutes in such cases; that he had given the justice the names of the witnesses to be examined, but had made no other suggestions than to hand the justice the interrogatories he had received from Stoneham. Witness had signed a paper after the trial and acquittal of Hamilton in the district court upon the representation by Hamilton

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

that it referred to his business capacity; that he had not read the paper and would not have signed it had he known that it was a testimonial to Hamilton’s character.

The witness Greer, Forrester and Yarborough all stated in their depositions that the meeting of the citizens to discuss the fire had taken place after Hamilton’s arrest, after the fire inquest had been held and after the evidence given by the witnesses Stoneham and Kibble had been made generally known in the community.

There were special cross-interrogatories propounded to all three, which were all answered substantially as follows: Forrester answered that the jury of fire inquest was composed of A. W. Kennard, P. K. Lott, I. B. Clark, George Wood, George Brooks and A. W. Milroy, that A. W. Kennard was foreman of the jury and that all the members of the jury stood well as reputable and honorable citizens; that Stoneham and Kibble had been witnesses before that jury and had testified that Hamilton had set the warehouse on fire and the jury inquest had so found and A. W. Kennard had made the affidavit charging Hamilton with it; that he (Forrester) had resided in Navasota about 5 years, had been street commissioner and health inspector and was now justice of the peace, had known Hamilton since his youth but was not acquainted with his general reputation as a business man; was acquainted with Hamilton’s general reputation for moral standing and it was not very good.

The answers of Yarborough and Greer to the special cross interrogatories covered substantially the same matters brought out by Forrester’s answers.

Court at this stage took a recess of fifteen minutes to give the jurors and lawyers an opportunity to stretch their legs and take a long-range view of the wagon bridge across the bay from the court room windows.

When business was resumed the answers of Greer and Forrester to the special cross interrogatories were read and with this the documentary evidence by deposition was concluded.

S. G. Henderson was then called from the witness room by request of Mr. Rhodes and put on the stand.

He testified that he had known Hamilton ten or twelve years and had worked for him as clerk during the cotton season of 1890-91 and 1891-92 up to

PAGE 16

December 1891; that Hamilton’s business was that of warehouseman, and when he left him in the last season he worked for him Hamilton had handled between 8000 and 9000 bales of cotton; that the cotton came from all parts of Grimes county and from Montgomery county, hauled in by the farmers, and that those who did business with Hamilton seemed to like him well; that some others handled more cotton than Hamilton; he thought Rhodes, Owen & Co. handled more; there were others there in the warehouse business; witness had lived in Navasota in 1890 but had lived out in the country in 1891, and when he left Hamilton he went back to his farm in the country; that he knew Seaborn Stoneham and did not know of his doing any business for a living, never saw him doing anything and didn’t know how he derived his support; Stoneham sometimes came into Hamilton’s place. Witness did not know anything crooked about Hamilton’s business and as far as his observation went it was all straight; the warehouse was left open during the week so that farmers could go in it to sleep if they wanted to, but I was always closed and locked on Saturday nights. When he locked the doors, he did not think a man of Stoneham’s size could get through into the warehouse.

The witness was not cross examined.

F. E. Hamilton, the plaintiff in the suit was recalled by Mr. Rhodes and asked if, since giving his testimony the other day, he had examined the stenographic report of the trial in Anderson on the charge of burglary and if so , had he discovered that he had confounded the testimony of Kennard with that of someone else?

Hamilton replied that he had confounded the testimony of Forrester with that of Kennard, and no wanted to correct what he had said, and say that it was Forrester and not Kennard who had testified to the sending for the negro Kibble several times by the fire inquest. He said that Deverne owned the house occupied by him as a warehouse, which was burned and that Deverne did not have anything to do with the prosecution in this case but had told witness he would not have anything to do with it because he did not believe him guilty of burning the place; that Deverne had given him a recommendation as to character after the trial for burglary. Witness examined the paper submitted to him by Mr. Rhodes and identified it as the recommendation referred to, and said the signature to it was that of Deverne; that he had rented from Deverne a number of years, and the building he occupied as a saloon was the property of Deverne as well as the warehouse.

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

Mr. Rhodes here turned the witness over to the other side, and General Boone proceeded to crossexamine him as to how he found out that he had made a mistake about Kennard’s testimony and Hamilton answered that he had found it out upon going over the stenographic report of the trial; that in that way he had found it was Forrester who had made the statement about Kibble. In reply to a question by General Boone as to Deverne, Hamilton said Deverne was one of the best men who had ever breathed; that he did drink at times, but when he signed that recommendation he had not taken a drink for several months; that Deverne did get drunk at times; but witness would not say yes to General Boone’s question whether Deverne did not stay drunk for weeks at a time and come down on the street almost nude, but admitted he had heard of Deverne doing the latter. That Mr. Rhodes had given him the form of the recommendation and he had had a number of them printed in Galveston and had gotten signatures to several of them in Navasota; had not brought suit against any of those who had signed these testimonials, which were all in the same terms viz: stating that as F. E. Hamilton was about to change his residence the signer took occasion to testify to his fine business capacity, commend him as worthy of confidence and stating that Hamilton had during his residence in Navasota deported himself as a straightforward honorable man.

Hamilton said he felt certain that he had not sued any of those who signed these documents. He had testified on his examination in chief that he was a law abiding man, was as law abiding as most anybody; he said he had been indicted several times, sometimes on perjured evidence; that he was indicted for assault with intent to murder Bob Atkins, an old colored man, and on trial was convicted of an aggravated assault for which he had paid $8588; that he had also been indicted for aggravated assault and battery upon a woman, Bettie Crawford, and also that a complaint had been filed against him by a man named Hicks charging him with embezzlement or theft of a bale of cotton. He explained the assault on Bob Atkins by saying that Atkins was working for a business rival and had pushed a wagon of cotton away from witness’ platform after it had been driven up there; that he and Atkins had gotten into a row about it and Atkins had thrown a rock at him and witness shot him; that Atkins was a much older man than witness.

Hamilton also explained the Hicks charge of embezzlement saying that it grew out of Hicks’ enmity toward him and that when he had been

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indicted and tried on that charge he had been acquitted.

General Boone: “Did you ever bring suit against Hicks for malicious prosecution because he made that charge against you?

Hamilton: “No, I wanted to kill the d—ol n--, and that’s what I ought to have done.”

Hamilton upon uttering this answer hastily turned and asked the court’s pardon, saying he had spoken out on the impulse of the moment. He was permitted to retire from the stand and then Mr. Rhodes stated that the plaintiff would rest.

Upon the part of the defendants General Boone offered, first the affidavit made by Mayor M. P. Yarborough for a fire inquest finding that the buildings had been fired by Hamilton and also the certified copies of proceedings already offered by the plaintiff.

The first witness called was M. P. Yarborough, who on the stand went over the same ground covered by his deposition, which had been previously read, and stated that he had made the affidavit for a fire inquest upon his own motion and thi8nking it was his duty as mayor to have the fire investigated; that he was present at the inquest when the witnesses were examined, and the county attorney, J. G. McDonald, Jr. was there at his request, representing the state in his official capacity as county attorney.

He testified that he was not one of the defendants in this suit; he had heard part of the testimony of Kibble and of Stoneham and from that he could not help believing that Hamilton had set fire to those buildings; he had attended a citizens’ meeting after Hamilton’s arrest and the purpose of that meeting was to see that the case in the district court was fairly prosecuted; knew defendants and known them all for a number of years; knew Shumaker; he was an upright high-toned gentlemen; the citizens who were defendants here were all the best men in the county and were good citizens in any country. That on Monday after the fire Hamilton had called him into his saloon, asking him to take something; witness was with Greet at the time and at first, declined to go in, but Greer proposed that they go in and take a cigar and they went in and Hamilton handed them a cigar each and had then asked him if Stoneham had not implicated him (Hamilton) in this fire; and witness had told him that he had; that he had no other conversation with Hamilton on the

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subject that he could recall, the conversation referred to occurred on Monday, April 11 about 11 or 12 o’clock.

Upon cross-examination by Mr. Rhodes witness stated that Hamilton had told him in the conversation he had with him that he was at home asleep when the fire occurred; couldn’t say that he knew Hamilton lived with his mother, but his mother lived there in Navasota. That Norwood had told him that Stoneham himself had asked him what the citizens would give to find out the incendiary but witness had not told the justice and the gentlemen on the jury all that Stoneham had said to him; that he had filed same questions to be asked Kibble; didn’t know why Hamilton was not informed of the holding of the fire inquest; didn’t consider it his business to tell him; thought that if he wanted to come and make a statement he could have done so; only heard the latter part of Kibble’s testimony; did not hear Kennard say he would be loath to condemn any man on Seaborn Stoneham’s testimony.

Stoneham was something on the order of a common vagrant, and as mayor of Navasota witness knew that Stoneham had been suspicioned of being connected with some of the fires that had occurred in Navasota previous to the fire of April 10; that Stoneham had lived in the community and never worked; did not know that he had been living very comfortably and wearing good clothes since that fire inquest was held; had known Kibble several years; Stoneham had lived all his live in Navasota; witness wrote down the questions at the dictation of Stoneham to be put to Kibble.

Redirect: Had advised the city council to employ a detective to investigate the origin of fires that had occurred in Navasota previous to April 10; had advised them to get a good detective, one had been employed and was paid some $250 or $260 and worked there about six weeks; that the detective had been told of the suspicions against Stoneham and had reported that the suspicions were wrong; that Stoneham had asked witness how much the citizens would give to find out the incendiary and he had told him that the city had nothing to give, and Stoneham had said he needed money to get away on; that he was afraid to tell who the man was unless they would protect him; could not say that he knew Stoneham’s general reputation for truth and veracity at the time he testified at the fire inquest.

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Mayor Yarborough was again cross examined by the plaintiff’s lawyers and identified his signature to one of the printed testimonials as to Hamilton’s character; said he had signed that after Hamilton’s trial in the district court on the charge of burglary.

Redirect: Witness said he had signed it without reading it; Hamilton had told him it referred to his business capacity and not to his moral character, or he would not have signed it.

Judge Boarman asked the witness if he signed that recommendation still believing Hamilton guilty of the charge upon which he had been tried and acquitted. Mayor Yarborough replied that he had and added that, believing Hamilton’s representation of its contents to be correct, he had also asked Will Kennard of Anderson to sign it, but Kennard had declined to do so.

Mr. Lovejoy asked witness if he had asked Hamilton to return that certificate to him after he found out what it contained. The witness replied that he had not and notwithstanding his knowledge of Stoneham and of Kibble he believed Hamilton guilty.

Judge Boarman: “What time did you reach the conclusion that Hamilton was guilty?”

Witness: “That morning when I went to the fire.”

Mr. Yarborough was excused and Constable Greer was called to the stand.

His testimony was substantially as above given in his deposition. Upon cross-examination he said it was a fact that he had testified on the trial of Hamilton at Anderson that the reputation of Stoneham for truth and veracity was bad and he still stuck to it, that Hamilton and he had been school boys together and he felt sorry to see him in trouble; that he never gave Hamilton any information about the fire inquest being held; that he thought Stoneham’s demand for money for telling who the incendiary was in keeping with his character; that the negro Kibble, when first examined at the inquest didn’t tell anything and then Stoneham was examined, and then the negro was brought back; he may have been brought back twice and finally he broke down and told of Hamilton having a five-gallon can of oil and pouring it on the cotton.

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Hon. Lock McDaniel put some questions as to the negro’s and Stoneham’s testimony on Hamilton’s trial, about Stoneham telling about being in the warehouse and hearing the negro and Hamilton talking about the firing of the house and then getting out after they had left and running down to the Santa Fe railroad; that the fire bell was just across the track from Hamilton’s warehouse and that Deadrick’s saloon, about 100 yards away, kept open all night.

Greer testified that somebody, he was not able to say whether it was A. W. Kennard, had said at the inquest that if they couldn’t get some evidence to corroborate Stoneham, by God he wouldn’t find any charge; that it was when the negro was brought back the second or third time; that something was said about putting him in jail and also something said about soft matches which did not make any noise when struck and that it was when these peculiar matches were talked about that the negro broke down and said that Hamilton had fired the house.

After some further questions and answers which elicited nothing not already disclosed in the testimony Judge Boarman asked the witness if he believed Hamilton guilty and was told that he did; that when he heard the negro’s story he felt sure Hamilton was guilty, though he hated to think so.

The court asked him if he was a witness in Hamilton’s trial for burglary. Greer answered in the affirmative.

The Court” “And you believed him guilty after that?”

Greer: “Yes sir.”

The witness was excused and the court adjourned for the day.

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The Galveston Daily News (Galveston, Texas) November 17, 1893 There is no decrease in the interest manifested in the result of the Hamilton case, which has been pending in the federal court all week. When Judge Boarman took his seat yesterday morning the courtroom was as closely packed with spectators as it has been on any previous day. Every word let fall by the witnesses was eagerly devoured by the crowd.

George Brooks took the stand and deposed: “I have resided in Navasota for fifteen years; did not contribute to prosecution of Hamilton; was member of jury of fire inquest and rendered verdict against Hamilton; did so because I thought him guilty. Have had nothing to do with case since that time; am not one of the defendants; I know all the defendants; they are good citizens so far as I know.”

Cross examination: “I did not know Stoneham to be a common vagrant; he stated to me that he went into the building to sleep because he had no other place to sleep; never heard him spoken of as an incendiary; did not know that he ever said he wanted money for setting any house on fire; inquest was held April 11 in the afternoon; did not know that he had withheld any information or that he had charged anyone with the crime. He did not say that Kibble had agreed to assist Hamilton in firing the house. We sent for Kibble after Stoneham left the stand and he denied all knowledge of the fire; Kibble was brought back again and after being assured of protection he told the whole story just as Stoneham had told it. The jury and justice did not tell him that he would be in the same hole with Hamilton if he did not tell the truth; he was told to tell the truth and no influence was brought to bear on him; it was said that unless there was corroborative testimony the members of the jury would not render a verdict on Stoneham’s testimony. Have lived there about fourteen years.

Never knew Stoneham to be engaged in regular work; I knew nothing about him; I heard the owned some real estate; never formed any opinion of him because I knew nothing about him; we did not send for people with whom Kibble said he had been playing cards; it did not appear inconsistent for us not to do so; do not remember who was present; so far as I know Stoneham is a first-class citizen, for I know nothing about him; we had sufficient evidence in my opinion to find a verdict against Hamilton. If the same testimony had been offered against any of the leading merchants we would have found the same verdict.”

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The witness then named the officers of the court which took part in the trial. Kibble testified about George Woodall being watchman and he (Kibble) being set to watch Woodall. “His manner impressed me with the fact that he was telling the truth; I have no prejudice against Hamilton. Mr. Hamilton’s standing in the community was unknown to me; I know him to be a good business man; his credit was good with our house; he did not own the house in which he did business but I knew nothing about him; we knew the character of the witnesses and on the same testimony we would have returned a verdict.”

Mr. Clark: “I am not one of the defendants and have no interest in the case; am a republican and was Mr. Hamilton’s friend; was a member of the jury and rendered the verdict against Hamilton because I thought it was right to do so; the verdict was on the testimony.”

Cross examination by the defense: “Jury sat late on the afternoon of the 11th; don’t remember hour; had not heard that Stoneham had gone to owner of house and offered to tell him who fired the house if he would pay him; had heard that Stoneham made such an assertion on the [subject?}; I have lived in Navasota about eight years; did not know Stoneham was a common vagrant; he said he went into the house but I do not know how he got in; I did not know of any particular home he had; knew very little about him; Mr. Norwood was present when the jury sat; one of the jury did not, according to my recollection, say he would not find a verdict on Stoneham’s unsupported testimony; Kibble said he was in a gambling house, I think, but I am not positive; we sent him away and brought Stoneham back and then he told his story; Kibble was brought back; at first he denied all knowledge, then he broke down and said if he was protected he would tell all about it; he was not told that he would be put in the same hole as Hamilton, but there was something of that sort said, and then he told the story; on the testimony of such a man I would have rendered a verdict against any citizen of Navasota.

Mr. Templeman or Mr. Norwood or Mr. Foster, who owned the house; when Hamilton told me after his acquittal that he was going to another state that he wanted me to sign a certificate that he was a good business man, I signed it; I had done business with him for years and had never seen anything in his business life to indicate that he would fire a house; he turned over his saloon to me because I bought it and I paid his debts; he got none of the money; I did not read the certificate which I signed; had I read it

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I would have signed it as to his being a good business man; after the inquest verdict was rendered I suppose the matter was discussed on the street; no public meeting was held that I heard of, and I live in the center of the town; I suppose that it was generally known on whose testimony the verdict was found; there had been several fires in Navasota before this, and I had heard that Stoneham was suspected of being the author of them.”

The witness to the court; “Mr. Hamilton stood all right with me, and his character had nothing to do with influencing me in returning the verdict; after Hamilton’s trial and acquittal I thought him just a guilty as I did when I sat on the fire inquest.”

George Wood: “I am one of the defendants; was a member of the fire inquest; signed the verdict on the testimony, not on prejudice; on the testimony I thought Hamilton guilty; I contributed about $30 to have Hamilton prosecuted for arson; he had good counsel and we hired counsel; I had never any but friendly relations with Hamilton; I thought him a guilty man on the testimony, and that was my reason in assisting in prosecuting him; Hamilton lived in his mother’s house; I passed it five or six times every day; I saw a negro woman in his house sitting on Hamilton’s lap; she was a negro prostitute, his mother was away at the time.”

Cross examination: “I saw the negro woman at night.

Saw her through a window. There was a light in the room. He was keeping bachelor’s home. I saw the negro woman in the yard and about the house frequently. Am not positive whether she stayed there at night or not. Have lived in Navasota twelve years. Knew the witnesses we had before the fire inquest. Norwood did not say that Stoneham had asked him (Norwood) what he would give to know who fired the house. Stoneham told someone else that I heard. He asked for money or protection. He wanted money to get away. Stoneham was not a vagrant. He had property for I lent a man money to buy some of his property. He was a sport, and sometimes he had money and at others none. He was suspected of firing a house but an investigation completely exonerated him. I know nothing about his knowing anything about the fire. I did not know what case I was to serve on until I got in the room, so I could not have known anything of the case. One of the jurors said he would not find a verdict on one man’s testimony, but he did not single out Stoneham. Kibble said he was in a gambling saloon.

After we brought him in the second time he told his

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story. He was not intimidated. He was told that we knew all about the case and asked him if he did not see a certain kind of match used and also if he did not stand on the bridge. When he saw, we knew so much he got nervous, and after being assured of protection he gave way and told the story. I have had no social relations with Hamilton, but our business relations were friendly. He was worthy of credit as a business man. The house did not belong to him nor did the cotton in it belong to him. Kibble confessed his connection with the case. The way he told his story made me believe it. On the same kind of testimony, we would have found a verdict against Mr. Norwood or anybody else of like standing. I contributed $20 to the prosecution. The meeting was held to prosecute Hamilton, because the people believed him guilty. Of course, the matter was discussed. The people were pretty well posted as to what the evidence was. Do not know who else subscribed money. There were committees out. I think one to employ lawyers.”

Major Boone: “The judge is absent from the bench.”

Mr. Lovejoy: “That’s all right. If you make a reasonable objection I’ll sustain it myself.”

Major Boone: “You can’t play lawyer and court both, Mr. Lovejoy.”

Judge Boarman returned to the bench and Mr. Lovejoy proceeded to question Mr. Wood, the witness, who said: “Hamilton and I had done business together, and up to that time I had not found him incorrect.”

Recross: “As between Stoneham and Hamilton, I believe the former at that time stood better for truth and veracity. At the inquest, the county attorney conducted the examination. I subscribed after the grand jury had found a bill against Hamilton. The money was raised to assist the district attorney who was a non-resident of the county. No subscription was raised for prosecution in the lower court. None raised at all until the indictments had been found.”

Abe Kennard took the stand and was sworn: “I was a member of jury of inquest. In rendering it I was governed by the evidence. I believed Hamilton was guilty – actuated by no other motive. Have lived in that county all my life. I was then clerking for Jacobs. Never had a difficulty of any kind with Hamilton. I made affidavit against him from the evidence, believing it my plain duty. I paid no money

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for prosecution and was asked for none.

I participated in no meeting – knew nothing about it.

I attended at trial at Anderson, being summoned by both state and the defendant. I simply rendered my verdict, made affidavit and went to court on a summons. That was all I did.”

Cross-examination: “After Stoneham had testified before jury of inquest, I said that on the evidence of Stoneham alone I would feel reluctant to render a verdict of guilty, because I knew Stoneham as a sort of a sport. I had heard his reputation discussed, but not unfavorably. It came out during inquest that Stoneham had told Norwood he knew who set the house on fire. I did not hear that Stoneham offered to tell who it was for money. I don’t remember whether he had told anybody who it was or not. I knew nothing about who was accused until I got in the jury room. We had Kibble before us and he said he knew nothing about the fire. Stoneham was then brought and told how he got into the house to sleep; that Hamilton set the fire, etc. Kibble was then brought back, and after asking to be protected, Kibble said: “Hamilton and myself done it.” He then went on and gave us the details. Stoneham told us all about getting out of the house; said he was scared terribly while lying in the cotton bales because he would be charged with applying the torch. In Navasota, the saloons close at midnight on Saturday night. The hotel and saloon are in front of the Hamilton warehouse. I would have found the same verdict that I found against Hamilton against any other man on the same evidence.”

Re-cross: “All the members of the jury signed the verdict. I had no doubt on earth as to Hamilton’s guilt. There was no suggestion as to anybody being guilty except Hamilton and Kibble. Allen Jones, just before the trial in the district court, said he had known Stoneham from his infancy and had never heard anybody charge him with telling a lie. Allen Jones knew Stoneham well – had lived neighbors with him.

Stoneham stood as well as Hamilton in that community. Hamilton stood bad as to moral character, as to honorable conduct and as to truth and veracity. I had no malice against him, and was only actuated by the belief that he was guilty. Don’t know anybody who was actuated by any other motive.”

In response to questions from Mr. Rhodes, witness said he had played cards with Hamilton, borrowed money from him and the like. Still, Hamilton’s

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general reputation for morality and integrity was bad. He didn’t know whether Hamilton was a bad man or not. Had heard him say things which, in witness’ opinion, was false.

At 12:30 the court announced a recess of thirty minutes and the jury retired. So did the attorneys – for liquid refreshments. The time was not sufficient in which to go home and dine, and on returning the lawyers amused themselves by firing paper balls at the News man and munching wads of tobacco.

J. G. McDonald, Jr. county attorney of Grimes county and witness for the defense, deposed: “I was county attorney in ___. Born and raised in Grimes county; live in Anderson; remember the fire. At the jury of inquest, I was there as county attorney.

Kibble was brought in and denied knowing anything about the fire. He was questioned by myself and members of the jury. I told him he would be punished for perjury if he testified falsely. Stoneham was brought in and said he went to Hamilton’s warehouse on Saturday night and slept on cotton bales; heard a train going north. While there, Hamilton and Kibble came in and Hamilton spread a can of kerosene all over the floor. Kibble talked and Hamilton told Kibble to see if anybody was around. Hamilton pulled off his shoes. Stoneham slipped out and in a short while he saw the fire; said he didn’t know what to do; said as soon as he could next morning he told his brother about it and then went and told Norwood about it; said he was afraid Hamilton would hurt him or have him hurt. When Kibble was brought back he at first denied it again, but finally said he was afraid. He was told that he would be protected. Then he told us substantially what Stoneham had said about it. I was present until the investigation closed. Mr. Kennard then made the affidavit. I heard all the testimony; did nothing but discharge my duty. I believed Hamilton guilty and advised his arrest. I was at the trial in the district court part of the time. There was no evidence in rebuttal of the alibi attempted to be established by Hamilton that I heard. Mr. Norwood may have been present during investigation. I am not one of the defendants in this case. At the end of the inquest I told the justice that it was a grave offense and that his bond should be heavy. It was then fixed at $5,000. Hamilton waived examination before Forrester and was represented by lawyers of repute and good standing. Hamilton offered to introduce no evidence. It was agreed by his counsel and myself to make the bond $5,000. None of the defendants attempted to use any influence in fixing the bond.

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Some of the defendants were in the courthouse. I believe. I observed no attempt on the part of the defendants in influencing that trial or to prejudice the case of the defendant. I have known Hamilton fifteen or twenty years; always had friendly feelings toward him; had no ill will at all toward him.”

Cross-examination by Mr. McDaniel: “I was present at the examining trial and advised that the bond be a heavy one as the offense was a grave one. I did not name any amount. I got license to practice law in 1888. I have been present in court there for years. I know of other instances where bonds were as heavy as that. Under some circumstances, I consider arson as bad or worse than murder.”

A discussion here to ensued between the attorneys relative to the pertinency of the size of the bond.

Captain Hutcheson saying it was irrelevant because the defendants had nothing to do with the making of the bond, and Mr. McDaniel claiming that he would show malice toward Hamilton in the fixing of an excessive bond. The court permitted the question to be answered and the witness continued: “I don’t remember of but two cases of arson there; in those cases I told Mr. Forrester the same that I did in Hamilton’s case, except that the evidence was not so damaging; in those cases the bonds were fixed at $1000 each; Stoneham furnished us with interrogatories to put to Kibble; one was as to where George Woodall was; he was the night watchman, and that Hamilton asked Kibble to see where Woodall was; Stoneham told us to ask Kibble if Hamilton did not tell him to see where Woodall was; he told us to ask Kibble if someone didn’t use an oath and say he wished that buggy was out of the way; I do not know how many times Hamilton’s name was mentioned before Kibble broke down.”

Re-direct, by Major Boone: “Hamilton’s name was not mentioned before Kibble told us about the matter; I was simply discharging my duty to the law, and had no feeling the matter.”

Then Nash was the next witness and Mr. McDaniel objected to his testimony on the ground that he had been in the court room. Captain Hutcheson said he had heard none of the testimony.

Mr. Nash was permitted to testify and said “I live in Galveston; when the warehouse at Navasota burned I was at the Exchange hotel there, arriving that night on the down train; I went there on the Houston and

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Texas Central road; went to the hotel with the others; in going to the hotel I saw Hamilton standing in the doorway of a saloon in Navasota, about half way between the depot and the hotel; Hamilton was looking in the door of the saloon, which was open; I went in the hotel, remained there between twenty and forty minutes, when I heard fire alarm; I was asleep, but got up and went to the fire; it was at a warehouse some two hundred feet from the hotel directly opposite; I saw Hamilton about two blocks from the fire; the depot was between the saloon where I saw Hamilton and where the fire was; he could have gone there a dozen times, or I could; I have known Hamilton by sight for six or eight years.”

Cross-examination by Mr. Rhodes: “I first gave the information I have given here to Kennard before this suit was brought, and after Hamilton was tried; didn’t give it before because I was not interested and didn’t think about it; I didn’t think it necessary to tell my friends at Navasota what I knew; I passed in six or eight feet of Hamilton; didn’t know whose saloon it was; Hamilton was standing sideways to me, looking in the saloon; I saw nobody but Hamilton; he was in the door’ don’t know whether saloon is well known or not; never was asked to show anybody the saloon, never told defendants what saloon it was; somebody from the hotel was with me; don’t know whether it was Kelly or not; I went to the fire of a residence there once, some years ago; I believe Kelly knows Hamilton; I have talked with Kelly about having seen Hamilton that night; I did not ask him to make the same statement that I had made; do not know where Kelly is; I did not speak to Hamilton that night; no other men about Navasota who have his figure that I know of.”

Redirect by Catain Hutcheson: “Mr. Terrell had a conversation with Kelly about the matter.”

W. H. Brown, one of the defendants in the case and against whom no judgement is asked by Hamilton, deposed: “I live in Navasota and have taken no part in the case. Did not testify or go to the mass meeting.

I contributed no money and have had nothing to do with the prosecution. Have known Hamilton about twenty-five years. He has no reputation as to character. His reputation is bad as a man and gentleman. It is such that upon warrantable evidence he would be believed guilty of the crime of arson. When I heard that he had been adjudged guilty I believed it. I know Stoneham. I never heard his reputation for veracity questioned. Stoneham’s reputation in Navasota is decidedly the best.”

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Mr. Lovejoy: “Mr. Brown are you mad?”

Mr. Brown: “I am not” Mr. Lovejoy: “Stand aside.”

M. Smith deposed: “I know Hamilton. I live in Grimes county. I am a republican. Never saw him at the republican conventions there. I know from what I have heard of him that morally and socially his reputation is bad. It is good as a business man. I have no prejudice against him or any trouble with him. I know these defendants. They are good, honorable, law abiding citizens so far as I know.

There is no prejudice in that community against G. W. Jones or any other man because he is a republican. I am warm friends there with democrats and I am a republican. I know Barry. He is one of my best friends. He has no prejudice against republicans. He is a member of the legislature from that county. Hamilton’s reputation is bad morally – not from a business standpoint. I believe he was guilty of these charges. I heard of the verdict directly after the inquest. Did not hear the details of the testimony.”

T. W. Hardy deposed: “I was at a farm in an adjoining county at the time of the investigation. Did not participate in the prosecution or subscribe any money. Had no prejudice against Hamilton. I know the reputation in Navasota of Hamilton for standing and veracity by hearsay and it is bad. When I heard the verdict of the jury I believed him guilty, and had no prejudice against him. I know most of the defendants. Have been among them before and since the sull[sic]. Never heard any expression of a desire to prosecute Hamilton except because he was guilty.”

Cross-examination: “I did not investigate for myself the charges against Hamilton, but formed my conclusion from what I heard and the verdict of the jury. I did not try to get up any testimony against Hamilton.”

J. M. Shaw said: “I have done nothing in regard to the prosecution of Hamilton. When the inquest was held, I was in Galveston. First I knew of his being accused I saw it in the papers. I was not at either trial. Contributed no many in any way and did not try to prevent his giving bond. Do not know why he brought this suit against me, except what I have been told. Hamilton was in the warehouse business. I am cashier of the bank there, and I had a transaction

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with him in regard to some cotton prior to the fire.

There was some question as to the weight of the cotton. Twelve or fourteen bales of cotton were gotten from Hamilton’s warehouse – the heads of the bales had been torn out or mutilated. The cotton was left on the wharf for shipment. It did not go out that night. That wharf was not burned and the cotton was not there the next morning. Personally, I do not know where the cotton went. I had heard complaints made to Hamilton about cotton, but only from hearsay. I had a list of cotton [bales] that I sold that afternoon for other parties to Calhoun. Calhoun looked at the cotton and said he would take it’ then I ordered it out of the warehouse for inspection on the wharf. Hamilton said he was busy and would not be able to get it out that night, but would have it out on Monday morning before that it was all burned, I think about ninety bales. I have lived in Navasota since 1876. Known him since that time. I knew his reputation there morally and socially it was bad. He had the reputation of being a bad man and capable of doing anything.”

Cross-examination: “I knew a colored woman there named Amy Martin. I did not interrogate her and ask her to swear anything. Mr. Calhoun said he was satisfied with the cotton. Don’t think he examined it at all. Hamilton pointed it out to him. It appeared to be there. The twelve bales turned out all right. It was put on the wharf for inspection. The railroad track ran by the warehouse. I didn’t see any cotton there next morning. The cotton would have been safer inside of the house. Our bank would advance money on warehouse receipts. There was nothing unusual in ordering out the cotton before the fire.”

John H. Mickleborough was sworn and said: “I was born and raised in Grimes county. Have known Hamilton nearly all my life. I helped to make his bond and am friendly toward him. After Hamilton had given bond and before this suit, he mentioned to me about bringing this suit. Shaw being one whom he proposed to sue. He said he “just wanted to hit Shaw a belt for being in bad company.” He knew Shaw was out of town.”

Cross-examination by Mr. Rhodes: “I did not tell Hamilton that I had heard that Shaw had tried to get testimony from a negro woman against him. I told him nothing of the kind. I was there when Hamilton was required to give bond, and signed my brother’s name to it, because he had more property than I did.

I had authority to sign my brother’s name. Henry Scott had signed his bond. That was an appearance

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bond, and the constable took the bond. I was in Navasota when he waived examination. I was carrying a telegram to Captain Hutcheson to secure his services for Hamilton. When Judge Kittrell reduced his bond to $2,000 I helped to make it for him. Hamilton himself told me about Kibble’s confession of guilt. Hamilton was in the commission business doing a good business. The farmers seemed to have confidence in him for several years prior to the burning. His business so far as I know was conducted straight. Had some business with him myself which was satisfactory; his standing with the people he did business with seemed to be good as a business man; I never heard his reputation as a business man called into question prior to the fire; never heard of him defrauding people; I never heard any reflection on his character up to that time, except that he ran after lewd women; I don’t know whether there was much excitement on the night of his arrest or not; heard no threats against his life; I did not go to him in the justice’s office and tell him if any violence was attempted I would stand by him; I heard that he was carried to Anderson; the most information I got was from Hamilton.”

Redirect by Mr. Boone: “I have not heard any complaints about Hamilton’s method of handling cotton, or of any shortage of cotton with the Santa Fe railroad; I only handle the cotton that I raise on my farm; complaints may have been made but I have not heard any.”

W. L. Steel was the next witness, and said: “I know Hamilton and counted the ties from the cotton after the fire; found 720 ties, enough for 120 bales of cotton; made search and found no more; the search was made by Arthur Wilson, Allen Jones and myself, openly in the daytime.”

Cross-examination: “I don’t remember whether Hamilton was in jail when we made the search or not; the fire showed the ties had not been touched; there was to sign in the ashes of anybody having been there, of anything having been pulled out; don’t know how many ties were on the cotton in his warehouse; it was two or three days after the fire that the search was made; I went there with nobody but Wilson and Jones; I attended a part of the meeting of citizens; my committee to count ties was not appointed at that meeting; I only found 720 ties after the fire; it was a hot fire, I suppose; ties would not be burned up, even in a hot fire like that; six ties are usually put on a bale of cotton; there was not prejudice against Hamilton; that I know of; I never

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

said I wanted to hang him; Ketchum, Anderson and myself did not discuss Hamilton on Tuesday morning following the fire in connection with hanging him; I contributed money because I believed Hamilton was guilty, and not from malice.

A. N. Garvin deposed: “I live in Navasota, in Grimes County; I am a republican and ex-postmaster of Navasota; I am aware of no prejudice there against republicans; I have no animosity against Hamilton; have always been friendly toward him; his reputation there is bad; I thought he was guilty and think so yet.”

Cross-examination: “I know Hamilton well he has done me favors which I appreciated; my kind feelings continued for him until the fire; he is a good business man; to considerable extent he had the confidence of the farmers; when I met him our relations were friendly and social; he was not active in politics in that county; I think his influence got me some votes; I don’t know whether his conduct would justify an opinion that he would burn a house; socially and morally his standing was very bad; don’t recall anything against him except his lechery; I came down here on the train and paid for my ticket myself; I came at the request of several citizens.”

Mr. Lovejoy: “I don’t want to do any other county in the state an injury – yet still live in Grimes county?”

The witness: “I do.”

Mr. Lovejoy: “I’m glad of it.”

Captain Hutcheson: “So are we, sir; so are we. He is a good citizen.”

The witness retired and court adjourned until this morning at 10 o’clock. There are a number of witnesses to testify yet, and the argument may not commence before tomorrow.

The Galveston Daily News (Galveston, Texas) November 18, 1893 The Hamilton case was resumed in the United States circuit court yesterday morning with the further introduction of evidence on the part of the defendants. The first witness was I. T. McGinty, who

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testified that he was one of the defendants; did not know why he was made a defendant; had nothing to do with the prosecution of Hamilton; contributed nothing and attended none of the meetings at which the fire was discussed; was at Anderson for about an hour during the trial of Hamilton, but did not go to the trial; had known Hamilton since boyhood and his reputation as a truthful, straightforward man was bad; witness lived in the county, about nine and one-half miles from Navasota. The sentiment in the community was to the effect that Hamilton’s reputation was bad. Never heard any one give him a good character. On cross examination the witness repeated that he had not contributed toward the prosecution of Hamilton nor participated in the meetings in connection therewith.

W. S. Ashe was the next witness and he testified that he had never contributed to the fund for the prosecution of Hamilton; did not attend the citizens’ meeting; that he had lived in Navasota since 1881, or about nine years; that he was a cotton buyer and had known Hamilton all the time since he (witness) had lived in Navasota; knew Hamilton’s reputation and it was very bad; has had numerous transactions with him, being a cotton buyer and having frequent dealings with him.

At this point, Judge Boarman interrupted the proceedings to state that it was not likely that any other cases would be tried at this term of the court; that it was almost certain no others would be tried, and he was very anxious to get through with this case so that the last day of the term of the court could be devoted to necessary matters in winding up the business.

With this announcement, the examination of the witness, W. S. Ashe, was resumed and he was asked if he could recall any instance of Hamilton’s business methods which justified his bad opinion of him; he replied that he recalled an instance which occurred just before the fire that may have caused Hamilton to make him one of the defendants in this case; that he (Ashe) had bought a lot of sixty-seven bales of cotton which was ordered out for shipment, and in going through the cotton previous to shipment, as it was on Hamilton’s platform, he found four bales which he was satisfied did not come up to the samples of the cotton he had bought; that he had, after purchasing the cotton in the first case, redrawn samples from the bales and the four bales referred to did not correspond to the samples, and he ordered the cotton reweighed; that one of the bales lost

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

twenty pounds, in weight. One forty pounds and the third gained 125 pounds; that after some words Hamilton agreed to pay for the cotton; Hamilton’s reputation was such that witness believed he would be guilty of arson if it was to his interest to do it.

Ashe referred to another instance where he had bought two bales of cotton in Hamilton’s warehouse and shortly afterward, in going through the warehouse he noticed fresh marks on them, and asked what it meant and had them weighed and found that they had lost forty pounds each in ten minutes, and that Hamilton had agreed to make it good and had made it good.

Upon cross-examination he repeated that he had had nothing to do with the prosecution of Hamilton; had contributed nothing toward the prosecution; had no conference with the committee that counted ties in Hamilton’s warehouse; did not furnish evidence for the committee or the citizens’ committee to work on that he had heard other cotton buyers talk of Hamilton substituting cotton in numerous instances; that he bought cotton from farmers, which was stored in Hamilton’s warehouse because he could not help it. He admitted that notwithstanding his knowledge and opinion of Hamilton’s character after he purchased cotton he permitted it to remain in Hamilton’s warehouse sometimes for several months; that it would have cost double charges to have moved it to another warehouse.

When Mr. Ashe was excused the defense, through Major Hume, announced that they had other wgitnesses, but would rest their case at this stage.

The plaintiff’s counsel asked for five minutes for consultation as to whether they would introduce any further testimony or rest upon what had been already introduced.

At the conclusion after consultation the plaintiff’s attorneys called Mr. J. H. Freeman to the stand. He was examined by Hon. Lock McDaniel and stated that he resided in Navasota and resided there in April, 1892. Went to the fire which occurred on April 10, 1892 at about 3:30 in the morning; was secretary of the hose company and it was my duty to get to the fire as speedily as possibly; was at home when the fire occurred; was aroused by the discharge of fire arms, and afterward heard the fire bell; Hamilton lived about two blocks nearer the fire; as I got opposite Hamilton’s house Hamilton was coming out of the door and he got to his gate and stepped out just ahead of me; we then walked on down to the fire

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together in company with each other, and when I got there the hose company was playing a stream of water through the warehouse window; Hamilton lived about five and hone-half blocks from Brosig’s corner and from Brosig’s corner to the warehouse was probably 200 feet; fire bell was on south side of Washington Avenue directly opposite Hamilton’s warehouse, and just about the center of town; when that bell run heard it at his house about eight blocks away.

Just as Major Boone was about the begin the crossexamination of Mr. Freeman, Judge Boarman suspended the proceedings in this direction and asked the jury to retire from the court room for a few minutes. When the jurors had withdrawn Judge Boarman stated to counsel that from the testimony on the part of the defense, not considering that of the plaintiff, Hamilton himself, he did not think it had been shown to a reasonable certainty that Hamilton had set the house on fire and he wanted to withdraw that point from the argument of the case by charging the jury that they are not authorized to find from the testimony on the part of the defendants that Hamilton had fired the house.

Major Hume said that the defense regarded that as irrelevant and has not had any purpose to argue that.

Judge Boarman: “Well I shall take it out of the argument and thus withdraw the inflammatory portion of the case.”

Counsel agreed to the court’s ruling on this point and the jury was brought back and the crossexamination of the witness, Freeman, was taken up.

He stated that the distance from Mrs. Hamilton’s home where Hamilton lived to the warehouse of Hamilton was about 100 or 150 yards and that a man might have had time to have set the warehouse on fire and then gone rapidly to the house of Mrs. Hamilton before he (Freeman) reached the fire; that when he reached there the hose company was already at work; that he had resided in Navasota since 1860 and had known Hamilton all that time; knew his reputation for honesty, integrity and fair dealing and it was bad, and his reputation for truth and veracity was also bad; witness had been mayor of Navasota two terms.

In response to questions by Mr. Lovejoy he said that he had but few business connections with Hamilton and these were in connection with collection of accounts and Hamilton had dealt fairly and squarely

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

with him on those; had paid part of an account and promised to pay the balance; witness had nothing to do with Hamilton socially; was not a member of any church, but had a high regard for people who belonged to the church; Hamilton had never cheated him and he had no personal knowledge of any transactions in which Hamilton had overreached anyone; that the same property here referred to as being burned on April 10, 1892 had been rebuilt and destroyed by fire again; that there was no inquest into the second fire; Hamilton was not living in Navasota when the second fire occurred; he did not think that there had been any great activity in getting up a reputation for Hamilton since this suit was brought, but in opinion of witness the people had been very lenient; know of no one in this personal knowledge whom Hamilton had overreached, nor did he know of any lies that Hamilton had told; had heard a number of the defendants here and also a number of other good citizens speak of Hamilton’s character.

The witness was excused and Mr. Rhodes called the plaintiff, Hamilton to the stand again. In reply to Mr. Rhodes’ questioning he said he had heard the evidence given by W. S. Ashe about certain cotton transactions and that it was not correct; that at one time Ashe had brought him over a shipping list for some cotton and when the cotton was put out there were four bales which he said were not right; one bale was cow eaten and he had paid Ashe for the storage, but it was untrue that there had ever been a case of a bale of cotton gaining 135 pounds in his warehouse; that he had never turned over the two bales of cotton which Ashe referred to, but had paid for two bales of cotton to R. B. Templeman & Co., had paid Ashe for the damaged and cow eaten cotton, but had never paid him for two bales; had never changed the marks on cotton nor had he ever substituted cotton. He was positive that Nash had not told the truth when he said that he had seen him in the saloon after 1 o’clock; that the saloon referred to by Nash was his (Hamilton’s) saloon; that Nash’s evidence was untrue.

Hamilton retired without any cross-examination and both sides announced that all the evidence in the case was concluded. Judge Boarman asked who would open the argument and how much time counsel desired for argument.

Mr. Lovejoy: “I think I can say all I have to say in the case in half an hour.”

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Judge Boarman: “If you do I’ll give you a medal.”

It was agreed that each side should have two or three hours for argument and Judge Boarman suggested that he should here tell the jury what he had said during their retirement in reference to the fire and he did so stating: “These gentlemen of counsel have been told that the evidence is not sufficient to show that Hamilton set his house on fire, and you will start out with the suggestion that he did not set his house on fire. This is a suit by the plaintiff for malicious prosecution and the burden of the proof is on the plaintiff to show that there is no probably cause for these prosecutions and the question is whether there was any probably cause.”

At the conclusion of these remarks the case was suspended for an hour to enable counsel to prepare for the argument, and at 12:15 pm the case was resumed.

IN accordance with the court’s suggestion, Mr. Rhodes announced that upon the evidence adduced in the depositions and from oral testimony on the stand, the plaintiff would claim recovery in this suit against the following defendants named in his petition, dismissing as to others who had been cited: S. N. Norwood, T. C. Foster, Wm. J. Foster, Robt. R. Templeman, Ward Templeman, W. Lawrence Steele, Mitchell Anderson, Philip A. Smith, Wm. E. Barry, Stephen J. Walker, James W. Rhodes, J. H. Godger, J. M. Ackerman, H. A. Jacobs, Samuel M. Cooke, Shields B. Rucker, Alfred H. Ketchum, Thomas M. Owen, Jesse Youens, Allen Jones, Edward L. Bridges, Judson J. Felder, Arthur Wilson, George W. Wood, John E. Hill, Henry Schumacher, R. B. S. Foster, Jr., A. W. Kennard, Fayette Smith.

As to the following defendants the plaintiff dismissed: Michael Anderson, Robt. R. Anderson, James M. Shaw, W. H. Brown, Howard Barry, H. H. Wilson, Robt. A. Horlock, Charles W. Stuart, Mortimer Smith, R. J. Druke, D. W. Hardy, Joseph Jacobs, W. S. Ashe, Robert Brown, Cooper S. Taliaferro, Robert P. Owen, G. F. Thornhill, George L. Conoly, Henry D. Schumacher, Jesse B. Lott, R. K. Lockett, James T. Lott, Joel W. Terrell, August Heineke, Thomas Barry, Charles V. Vaughan, Robt. D. Blackshear,

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

John W. Leake, D. F. Wilkerson, John T. McGinty, Horace N. Bissell, W. G. Milroy, P. K. Lott.

Argument was then opened by Mr. John Lovejoy for the plaintiff. Mr. Lovejoy failed to win the judge’s medal for a half-hour talk, but he presented the law points of his case in an address of about three quarters of an hour, making a clear, concise statement of his view of the legal aspect of the case.

He said that the case hinged upon the question of probably cause for the prosecution of Hamilton in Grimes county, and whether there were reasonable grounds for the belief in Hamilton’s guilt.; that Stoneham’s evidence was the same as no testimony upon which to deprive a man of his liberty.

Major Hume followed Mr. Lovejoy, opening the argument for the defendants. He addressed himself to the court, presenting reasons why, from his legal view of it, the case should stop at this stage, claiming that the plaintiff’s petition nowhere averred the absence of probably cause for the prosecutions complained of as having resulted in damaging to the plaintiff; that the petition positively averred want of “justifiable cause” but not probable cause, and further that the petition nowhere showed a connection between the proceedings in the justice court and those in the district court. He said that under the jurisprudence of Texas a man was held and bound by the allegations pleaded in his petition and that proof matters not pleading amounted to nothing; that the decision was all squarely to this point, and that in Texas practice proof of an unaverred fact would not warrant a verdict.

The court said that the practice which he had been used to was to the contrary, but he would be guided in this case by the Texas jurisprudence, but he stated to Major Hume that he did not feel justified in withdrawing the case from the jury now, but would proceed with the trial and argument and the matter set up by Major Hume would be good matter to be urged in a motion in arrest of judgment.

Major Hume accepted the court’s ruling and after urging that the plaintiff could not recover for the wrongs done by the prosecutions before the justice of the peace because his pleadings nowhere showed that those proceedings had been concluded, he turned to address the jury and occupied his proportion of the allotted time in defense of his clients.

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Hon. Lock McDaniel wanted another one of the defendants’ counsel to follow Major Hume, but an objection was raised from the other side and the court directed Mr. McDaniel to proceed for the plaintiff and that gentlemen did so, making a strong address to the jury and urging that regardless of the peccadilloes of Hamilton which had been disclosed here by the testimony, his business standing was good, his warehouse receipts were good for money at the bank and the people who dealt with him had confidence in him. That a prosperous business had been destroyed by the action here complained of and Hamilton had been driven from the county in which all his life had been passed, his property sacrificed to seek a home among strangers. He said that for the wrongs done the perpetrators of those wrongs should respond to Hamilton in damages and it was for the jury to fix the amount of damages.

At the conclusion of Hon. Lock McDaniel’s address to the jury the court took a recess until 6 o’clock with the announcement that upon reassembling the session would be continued until the arguments had been concluded.

When they met again at 6 o’clock Captain J. C. Hutcheson addressed the jury in behalf of the defendants and made a vigorous speech in the course of which he dealt with Hamilton’s moral character in painted terms.

Captain Hutcheson was followed by Major H. H. Boone, who closed the presentation to the jury of the case of the defendants. The argument was closed by Mr. H. W. Rhodes for the plaintiff, who made a plea for the jury to deal with the case upon the testimony adduced and administer the law without sentiment.

At the conclusion of the argument Judge Boarman asked if the jury desired a little relaxation before receiving his charge and was told by the jurors that they were ready to hear the charge at once. He then charged them substantially as follows: “Gentlemen of the jury, you and I have no partisan views, no professional contests to enter into; nothing to vindicate but the truth, and its vindication here is sought by both sides. Whatever may have been said about malice, you and I have none in this case either toward these defendants nor affection in favor of plaintiff.”

“Right here I will state to you, for I must do it at some time and I charge you now that the testimony in this

GRIMES COUNTY HISTORICAL COMMISSION NEWSLETTER MAY 2017

case does not warrant you in finding that Hamilton set fire to the house; I charge you this because while the charge of burglary made against him in the district court of Grimes county was prosecuted and resulted in an acquittal. The charges of arson were not tried, but their prosecution was abandoned by the state; I charge it because the testimony of the defendants themselves does not warrant finding that Hamilton set the fire.”

“It is conceded that Hamilton’s warehouse was destroyed by fire on the night of April 10, 1892, and it is perfectly natural that people in a small community people in a community like Navasota, would set up an inquiry as to the origin of such a fire, and such an inquiry was set up and there were two witnesses examined, one of them a negro named Kibble and the other a white man named Seaborn Stoneham. That inquest resulted in a finding that Hamilton did set the fire and on the affidavit of Kennard, who was foreman of the jury, Hamilton was arrested, charged with arson. When the grand jury met three bills of indictment were found against Hamilton, one for burglary and two for arson; he was tried on the charge of burglary and the trial resulted in an acquittal and the government then dismissed the charges of arson.”

“Now it is incumbent on the plaintiff to make out his case clearly and the plaintiff cannot recover unless you believe from the evidence that the was prosecuted by the defendants as charged and that such prosecution is ended and the plaintiff discharge, and that he is innocent of the crime with which he is charged. In order that plaintiff can recover he must make it reasonably certain by a preponderance of proof that this prosecution was set up by the defendants against Hamilton and that he was acquitted, but the thing at last that will plague you most is the question of whether or not there was probably cause, and I will say to you that probable cause as defined in the decisions is the existence of such facts and circumstances as would excite the belief in a reasonable mind that a person charged with commission of a crime is guilty of the crime for which he was prosecuted, if on inquiry in this case you find that there was probable cause you will go no further, but find for the defendants but if you find that there was no probable cause, then you will go into an inquiry as to the amount of damages to which in your opinion the plaintiff is entitled. Then also you will go into an inquiry into the question of whether there was malice, and malice is a presumption of fact to be found in the absence of a

PAGE 29

probable cause for the prosecution. The burden of the argument of the plaintiff that these men composing the jury of inquest were not warranted in bringing in this charge; they say that they should have sent to ascertain if the negro Kibble was in a gambling house at the time of the fire, as he said first that he was, and should have also sent for Hamilton.

This is only a circumstance; they may hot have thought it necessary to inquire into the negro’s first statement and the fact that they did not send for Hamilton counts for nothing, these inquests are held much after the manner of grand juries and Hamilton was not entitled to be heard.”

“When you go into the jury room you will find yourselves going about in a circle and coming back at least to this one point; Were these men warranted as responsible men upon the facts and circumstances of this case in making these charges against Hamilton? That is the one point and is peculiarity one to be determined by the jury. I have tried to assist you, but find myself unable to do so, as it is so peculiarly a point fo your own judgment that I find it impracticable to aid you.”

“If you find there was no probable cause you will find for the plaintiff; if you find secondarily that there was malice. If you find that here was probable cause, then as I have already said to you, you will find for the defendants. In this connection let me say, a prosecution may be set up maliciously and yet there may be probable cause. Want of probable cause and existence of malice must be clearly established.”

“If you should find for the plaintiff you will go into the question of how much damages you will give him, and in determining this you will take into consideration the question of his business, and there is also the element of mental anguish and suffering, which is a matter for damages. You will make up your verdict for a round sum in event you find for the plaintiff, without stating how much you give for the one or the other of these elements of damage.”

“Now if the attorneys have nothing further, I will give the case to the jury.”

The lawyers for Hamilton expressed themselves as fully satisfied with the judge’s charge, but Major Hume for the defendants reserved an exception to the court’s refusal to give certain charges which had been requested and also to the court’s charge, withdrawing the issue of Hamilton’s guilt of the crime of arson from the jury’s consideration. He also

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PAGE 30

said that the court in charging upon the issue of malice had said that it was a fact to be presumed when the statute said it was a fact to be inferred and asked if the court would make its charge upon this as an inference of fact and not a presumption of fact.

The court replied that he had used the term presumption advisedly and said to the jury: “I repeat to you now that if you find that this prosecution was set up without probable cause you may presume that there was malice and this is a presumption of fact, and not a presumption of law.”

Mr. Rhodes: “And, if your honor, the jury should find that there was malice …”

The court: “Yes, I will also charge upon that. I charge you further, gentlemen of the jury, that you may find vindictive or punitive damages, if you find there was malice as well as want of probable cause. Now, a malicious purpose is in law a willful purpose and malice in this case would be a setting up of a prosecution willfully without probable cause.”

“You may now retire and if you find a verdict tonight you may write it out, put it into an envelope, seal it and leave it with the marshal; then you may go to your homes and, gentlemen, I will consider that you are treating the court very badly if any living soul but yourselves knows what is in that verdict before it is opened here before you in open court at 10 o’clock in the morning. You could not tell it to me before that time, and you should not tell it to anybody else, because it is none of their business.”

He cautioned the jury that in their relation to this case they were dealing with it as a business matter and should consider it with their intellects and not with their hearts, and he could assure them in the light of his twenty years’ experience as a judge when they reached a verdict in that way they could come and present it and go away without being haunted by any visions of the case.

He appointed Mr. H. Hauser foreman, and directed that the jury should stay together until a verdict was found. At 8:15 p.m. the jury retired and was placed in charge of Deputy United States Marshall John Williamson until a verdict should be reached.

At 3:40 the jury in the Hamilton case had gone into sleeping and no verdict had been reached. It is expected that a verdict will be reached this morning.

The Galveston Daily News, Texas) November 19, 1893

(Galveston,

Frederick E. Hamilton vs. Walter N. Norwood et al.; verdict by jury for Plaintiff with damages in the sum of [$3500;] motion by defendants in arrest of judgment and motion for a new trial overruled by the court and notice of appeal given.

The Galveston Daily News, Texas) November 24, 1893

(Galveston,

Navasota, Tex., Nov. 22 – The defendants in the Hamilton case met this evening and decided to fight to the end. The attorneys have volunteered their services free of cost to carry it to the highest courts.

Captain Hutcheson, accompanied by a few of the defendants, will be in Galveston tomorrow.