October/November 2009 THE ABBHS NEWSLETTER BENCH AND BAR HISTORICAL SOCIETY

THE - ITS CAHABA BEGINNING, 1820-1825*

BY DEAN DANIEL J. MEADOR

One of the Alabama Territorial Legislature’s 1819 Acts specified that ses- sions of the Supreme Court be held twice a year in Cahaba, the new state capital, beginning on the second Monday in May and the second Monday in November. Pursuant to that Act, four of the five circuit judges convened in Cahaba on May 8, 1820, for the first sitting of the Supreme Court of Alabama. As the state General Assembly did not meet until the following November, and Governor was ill, this Court session was the first official governmental activity in the new state capital. The five circuit judges who initially constituted the Supreme Court of Ala- bama were: Abner Smith Lipscomb (First Circuit); Reuben Saffold (Second Circuit); Henry Young Webb (Third Circuit); Richard Ellis (Fourth Circuit); and (Fifth Circuit), who was selected by the judges to be chief justice. In 1821, the General Assembly created a Sixth Circuit, and the legislature selected Anderson Crenshaw. Before the Court left Cahaba, Clay resigned and was replaced as chief justice by Lipscomb while Henry Minor replaced Clay. In 1823, Henry Y. Webb died and the General Assembly elected John Gayle to take his place in the Supreme Court’s membership. These men came to Alabama from the Eastern Sea- board South, only half had the advantage of a college education, and six had “read law” in the states from which they came. Half of these judges had been members of the 1819 constitutional convention. During the six years the Supreme Court sat in Cahaba, it met for a total of eleven terms. Each term lasted no more than a few weeks. Those judges must have been extraordinarily busy, because, in addition to those Cahaba sittings, they Justice Anderson Crenshaw were obligated to hold circuit court in each county in their circuits twice a year. The Court probably held its initial meeting at the residence of William Pye, because the The early Court’s most prolific writer. legislature appropriated $20 to reimburse him for the Court’s use of his premises. It is not known where the Court held other meetings, perhaps the capitol when the legislature was not in session. With no precedents of its own on which to rely, the judges carried forth Inside This Issue: the legal systems in the original thirteen states, which were descendants of the English common law and equity, and relied on decisions of the highest courts of Executive Secretary’s Message 2 other states with published reports. There was no public law library or court library. Each judge functioned in his own circuit and must have been dependent on his 2nd Annual Meeting 4 own books. Each judge probably owned a copy of Blackstone’s Commentaries. The work of the Supreme Court during its Cahaba years was largely con- 5, 6 Alabama Legal Milestones fined to civil cases. The Court decided a total of 214 cases, found in Minor’s Re- Jabez Curry Comes Home 7 ports, the first volume of Alabama Supreme Court Reports. Commercial transac- tions were often involved. It held in Humphrey v. State, Minor 64 (1822) that un- Courts of Appeal Celebrate 40th! 9, 10 der its governing statute it had no jurisdiction to entertain appeals in criminal cases; however, by statute the Court was authorized to decide questions of law in How Hollywood Influenced an 11 criminal cases that were referred to it by a circuit judge. Many of the Court’s opin- Alabama Jury (Continued on page 3)

Preserving the History of Alabama October /November 2009 Page 2

Executive Director’s Column

I want to thank our membership for making our First Annual meeting in April in Birmingham such a success. It marked the first time our member- ship was able to convene to share our interests by having the opportu- nity to hear Sheryll Cashin, author of The Agitator’s Daughter and Georgetown University law professor, share her story and memories of a tumultuous time in Alabama history. Sheryll went to Montgomery the BOARD OF DIRECTORS following day where ABBHS sponsored her at the Alabama Book Festival. For those of you who purchased an autographed copy of the book, I Tim Lewis know you discovered how interesting it was to follow Sheryll on her jour- President ney as she researched her family, especially the story of her great- grandfather, Herschel V. Cashin, using the resources of libraries, family Rebecca Jane Garrett Executive Director letters, and personal interviews. To me, that was the most important part of what she wrote and talked about because it is the message and mis- sion of ABBHS to preserve the legal history and stories of Alabama. Leah Rawls Atkins Equally important, because of both venues, the Annual meeting and the Alabama Book Festival, gained the ABBHS some new members. Several Jonathan Bass ABBHS members brought guests to the luncheon that then joined. Since we sent out our debut brochure in May 2008, the bulk of our member- Hon. Quentin Brown ship enrolled through the summer. Accordingly, I have been working on Fred D. Gray renewals this past summer. If for some reason, you have not received an email or a renewal card in the mail, just use the membership card en- Hon. Sonny Hornsby closed in this newsletter as your renewal form. And, if you have renewed, take the card and invite someone to join—a law partner, a relative, or a Lynne B. Kitchens friend who likes history. Share this newsletter, and others will under- stand a little more about the Alabama Bench and Bar Historical Society. Sandra Holston Lewis And, if they ask about what other things we do besides the newsletter, tell them about Jan Crawford Greenburg or Sheryll Cashin. Even more William Dudley Melton exciting, tell them about our new publication project with the Alabama Jim Noles State Bar—Pat Rumore’s book From Power to Service: The Story of Ala- bama Lawyers, which we are all eagerly awaiting. Also, the ABBHS has Edward Pattillo access to people in our membership and on our Board who can speak at local Bar associations and local historical societies. Following the pres- Sam Rumore entation/speech, whether it is about the first women lawyers in Alabama, or the first black lawyers in the state, or a case of note, an invitation to Fred Simpson join ABBHS is always extended! William E. Smith Jane Garrett Page 3 October /November 2009

The Supreme Court of Alabama: Its Cahaba Beginning (Continued from page 1) ions were concerned with technical common law pleading points, and the judges showed themselves to be well-versed in that lore. A case with a contemporary ring was Brahan and Atwood v. Ragland, Minor 85 (1822). The question there was whether “reasonableness” in the giving of notice to an indorser was a question of fact for the jury or one of law for the court. The Court determined that the answer depended on whether custom in the community had established a settled practice as to what was “reasonable.” On examining English authorities, the Court found that in London, custom had settled the matter and the question was for the court. In Alabama, however, a recently-settled and sparsely-inhabited state, no such custom had been established and thus the question was one of fact for the jury. These law-fact distinctions come up often in Ameri- can courts today. The analysis in the 1822 Alabama opinion is still useful. Many of the Court’s reported decisions are shown as being “By the court,” without identification of author. But many do have identified authors. During those Cahaba years, Crenshaw wrote the most majority opinions—48 in all. Saffold was next with 42, then Lipscomb with 38, Minor 28, Clay 25, Gayle 9, Ellis 8, Webb 1. Crenshaw, with 7 dissenting opinions, was also the leading dissenter. The only other dissenters were Clay, Minor, and Webb, with one dissenting opinion each. With three concurring opinions, Crenshaw also lead in that regard. Ellis, Lipscomb, and Gayle wrote one concurring opinion each. In one case, Henry and Winston v. Thompson, Minor 209 (1824), every judge wrote separately; there was no majority opinion. From this record, it can be seen that Crenshaw was clearly the most prolific opin- ion writer, even though he did not join the Court until a year and a half after its begin- “...major credit for establishing ning. His dissenting and concurring opinions also show him to be the most independent Alabama’s caselaw goes to minded of the judges, not infrequently taking a different view of the legal issues. If Clay Crenshaw, Lipscomb, and had remained on the bench, he might have rivaled Crenshaw, judging from his rate of Saffold. Clay and Minor are production during his two and a half years on the Court. Ellis is a puzzle. He was on the also due recognition, the latter Court throughout its six years in Cahaba, yet he wrote only eight majority opinions and not only for his opinions, but one dissent. Webb is even more puzzling. During his two and a half years on the bench, also for his collecting the he wrote only one majority and one dissenting opinion. Minor was a real producer, with Court’s decisions during its his 28 majority opinions during only two years on the Court. Cahaba years and publishing To sum up, based on the opinions in Minor’s Reports, major credit for establish- them as the first volume of ing Alabama’s caselaw goes to Crenshaw, Lipscomb, and Saffold. Clay and Minor are also Alabama Reports, thus making due recognition, the latter not only for his opinions, but also for his collecting the Court’s them available to lawyers and decisions during its Cahaba years and publishing them as the first volume of Alabama judges throughout the state.” Reports, thus making them available to lawyers and judges throughout the state. Though not on the Supreme Court, two other men are due large credit for their contributions to Alabama law in those formative years. One was Harry Toulmin. In 1807, President Thomas Jefferson appointed him judge in the , and he moved to St. Stephens. He was a member of the 1819 constitutional convention. Obviously a scholarly type, Toulmin compiled a digest of all governing Alabama laws, territorial and state, pursuant to authority of the legislature. Toulmin’s Digest, a work of more than a thousand pages, published in 1823, must have been of inestimable help to the bench and bar, as there was no other single source of Alabama law. The other important legal figure was , Alabama’s first attorney general, elected by the legislature in accordance with Article V of the 1819 constitution. Vermont born, in 1816 he moved to St. Stephens. His significant contri- bution to Alabama law was his publication in 1822 of The Alabama Justice of the Peace, a compilation of the laws dealing with that subject. In 1826 he was appointed U. S. Attorney, and he moved to Mobile. In 1835 he was elected to the Ala- bama Supreme Court, becoming chief justice in 1836. As with Toulmin’s Digest, Hitchcock’s book was the only readily avail- able source on its subject. Those two books and Minor’s Reports are the foundational publications dealing with Alabama law. In December, 1825, the General Assembly reconsidered the question of a location for the permanent seat of state government. It was required to do so at that time by a provision in the 1819 constitution. As noted earlier, location of the state government was a highly contentious issue in 1818 and 1819 as preparations for statehood were underway. The influ- ence of Governor William Wyatt Bibb in promoting Cahaba then carried the day over opposition of North Alabama and Tom- bigbee-Black Warrior interests. But with Bibb gone and Cahaba suffering from floods and yellow fever outbreaks, those inter- ests finally prevailed. Both houses of the legislature concurred in designating Tuscaloosa as the permanent site. Under the constitutional provision, the governor’s approval was not required. The move took effect on February 1, 1826. The Supreme Court of Alabama met in Cahaba for the last time in December 1825. When the judges reconvened for the Court’s next term, they did so in Tuscaloosa and would do so for the next two decades, until the capital was finally fixed at Montgomery. ______

*This is an abridgement of an article that will appear in Volume 61 of The Alabama Law Review. The ABBHS thanks the Alabama Law Review for permission to print this abridgement. October /November 2009 Page 4

NEWS, NEWS, NEWS!

SAVE T HE DATE!

The ABBHS will hold its Second Annual Meeting on April 8 and 9, 2010 in Montgomery. Look for further details coming soon on our website, www.alabamabenchandbar.org ALL HONOR TO HIS NAME

The members of the ABBHS mourn the passing of Founding Member Maury Smith. No attorney surpassed Maury in ser- vice to his State, the Bar, and to his family. Maury’s love of history led him to serve as a Board of Trustees of the Ala- bama Department of Archives and History and as President of the Alabama Heritage Foundation. As President of the Alabama Heritage Foundation during a critical time in that organization’s history, his leadership preserved Alabama’s most important historical journal, Alabama Heritage magazine.

His service to the Bar was exemplary, spanning over half a century of legal practice, including service as an Assistant At- torney General, Assistant District Attorney for Montgomery County, President of the Montgomery County Bar Associa- tion, Chairman of the Alabama Bar Association, Judicial Building Task Force, and Chairman, Judicial Campaign Oversight Committee for the elections of the year 2000. He began the practice of law in Montgomery with the late Senator O. J. Goodwyn under the name Goodwyn & Smith. The firm later merged and became Balch & Bingham. He served as a member of the Board of Trustees of the , from which he earned both his B.S. and L.L.B. degrees.

Maury served his country in the United States Infantry from 1944-46, and served his community as President of the Montgomery Area Chamber of Commerce, a member and past Chairman of the Montgomery Area Committee of 100, and a member of the Montgomery Kiwanis Club.

He was married to the former Lucille West Martin, with whom he had three children.

FROM POWER TO SERVICE: THE STORY OF LAWYERS IN ALABAMA BY PAT RUMORE

The first book on Alabama’s legal profession is in the publication stage and will hopefully be out just in time for Christmas. We are keeping close tabs on its progress and will notify our members when it is ready to order.

ALABAMA LAWYERS HALL OF FAME

The Alabama Lawyers’ Hall of Fame, part of the Alabama State Bar Association, is accepting nomina- tions for its 2010 class. Nominees must meet the award criteria, which includes having a breadth of achievement in their lifetime, demonstrating a profound respect for professional ethics, being recog- nized as a leader in their community, and leading, inspiring, or mentoring others in the pursuit of justice. Only lawyers who have been deceased for a minimum of two years are considered. Honor- ees are chosen in two categories: those who have been deceased at least two years, and those who have been deceased at least one hundred years. Honorees must be Alabama lawyers who have made extraordinary contributions through the law at the state, national, or international level. The dead- line for nominations is March 1, 2010. Nomination forms can be found at www.alabar.org/members/ hallfame/halloffame_ALH_2009.pdf. Page 5 October/November 2009

OCTOBER LEGAL MILESTONES

October 1-4, 1867: For the first time in Alabama history, African Americans voted in a statewide election. About 70,000 black men, the majority of the voters in the election, called for a constitu- tional convention and elected an overwhelmingly Republican set of convention delegates, including 18 blacks. That convention pro- duced Alabama's fourth constitution. The President of the Conven- tion was E. Wolsey Peck, later Chief Justice of the Alabama Su- preme Court.

October 4, 1937: Hugo Black, a native of Clay County, took his seat as an Associate Jus- tice of the U.S. Supreme Court. Black studied law at the University of Alabama, served in World War I, and represented Alabama in the U.S. Senate from 1927 until 1937, when he was appointed to the U.S. Supreme Court by President Franklin Roosevelt. Black served on that Court until his death in 1971.

October 8, 1890: “Rube” Burrow was killed after escaping from jail in Linden, Alabama. A native of Lamar County, Bur- row robbed his first train in 1886, and by 1890 was the most wanted outlaw in the South.

October 28, 1819: The Alabama legislature elected William Rufus King as one of Alabama's first United States senators. King served several terms in the Senate, and in 1852 was elected U.S. Vice President. His term officially began December 14, 1819, the day Alabama became the 22nd state.

October 10, 1980: Governor appointed Oscar Adams to the Alabama Supreme Court. Adams was the first African American to serve on any appellate court in the State of Alabama. In 1982 and 1988, he was elected to full terms on the Supreme Court and became the first Afri- can American to be elected to a state-wide constitutional office in the history of Alabama. October /November 2009 Page 6

NOVEMBER LEGAL MILESTONES

November 3, 1970: Fred Gray and Thomas Reed were elected to the state House of Representatives to become the first black Alabama legislators since Reconstruction. Both men won seats from the 31st House District, composed of Macon, Bullock, and Barbour counties.

November 11, 1901: Alabama's 1901 Constitution was ratified by statewide vote in an election fraught with corrup- tion. Following the trend of other southern states in this period, Alabama used the constitution to effectively disfran- chise blacks and poor whites. With hundreds of amend- ments, the 1901 Constitution carries the distinction of be- ing twice as long as the constitution of any other state.

November 20, 1826: Alabama's legislature convened in the new capi- tal of Tuscaloosa for the first time. The capital had been moved there from Cahaba, the state's first permanent capital. In 1846, the legisla- ture voted to change the capital again, this time moving it to Montgom- ery.

November 21, 1818: Cahaba, located at the confluence of the Alabama and Cahaba Rivers, was designated by the territorial legislature as Alabama’s state capital. Huntsville would serve for a short time as the temporary capital. The selection of Cahaba was a victory for the Coosa/Alabama River contingent, which won-out over a Tennessee/Tombigbee Rivers alliance group that wanted to place the capital at Tuscaloosa. The power struggle would continue between the two sections of the state; in 1826 the capital was moved to Tuscaloosa, but in 1847, it was moved to the Alabama River at Montgomery.

November 24, 1869: By joint resolution of the legislature, Alabama ratified the Fifteenth Amendment to the U.S. Constitution. The amendment guaran- teed the right to vote to blacks, including former slaves.

Page 7 October /November 2009

U.S. CAPITOL'S NATIONAL STATUARY HALL: CURRY COMES HOME BARELY KNOWN**

By Jim Noles

On Wednesday, it was out with the old and in with the new in the U.S. Capitol's National Statuary Hall collection. In a formal ceremony, a bronze likeness of Helen Keller joined Joseph Wheeler to complete Alabama's two-statue delegation to the collection. Keller's arrival edged out Jabez Lamar Monroe Curry, ending his marble statue's 101-year tenure as half of Alabama's contingent in the collection.

Few, of course, would -- or should -- dispute the inspirational addition of the amazing Helen Keller to Capitol Hill. But if few found cause to criticize Keller's selection, even fewer rued the departure of the bearded Curry. Such a lack of lamentation for the recently-departed Curry, however, probably has as much to do with an ignorance of Curry's accomplishments as it does with well- deserved respect for Keller's. In fact, an often-cited reason for Curry's ejection is that, simply, no one from Alabama knows who he is.

If so, that's a shame. Curry may not be a household name to his fellow Alabamians, but that should not detract from his accomplishments. Suffer, for a moment, a brief history lesson.

Born in in 1825, Curry moved to Alabama's Talladega County as a teenager. Although he graduated from Franklin College (today's University of Georgia) and later earned a law degree from Harvard, he continued to call Alabama home. The elo- quent and intelligent Curry served several terms in the Alabama Legislature and represented his adopted state in both the U.S. House of Representatives and the Confederate Congress. As a lieutenant colonel, he further served the Confederate cause as a staff officer and, briefly, as a regimental commander.

After the Civil War, the multifaceted Curry became an ordained Baptist minister and took the helm of Howard College (today's Samford University). He soon despaired, however, of the political situation in Reconstruction-era Alabama and, in 1868, left his home state and accepted a professorship at Richmond College.

In the years that followed, Curry authored scores of books and pamphlets, ranging from a civil history of the Confederate states to a biography of British statesman William Gladstone. He even found time to serve as an American ambassador to Spain. Despite such a wide array of accomplishments, Curry's greatest claim to fame lies in the field of education.

"It is the prime business and duty of each generation to educate the next," Curry lectured in Louisville in 1883. "No legisla- tion in the United States is more important than that which pertains to the universal education of our citizens."

For Curry, it was a theme he would revisit time and time again in the wake of the Civil War. "The lowest considerations of self-interest demand the competent support of universal education," Curry told Georgia's Legislature in 1888. "Free government is the outcome of diffused intelligence and broad patriotism. An ignorant rabble is food for riots and the tool of demagogues."

Curry traveled and lectured throughout the South in support of state normal schools (i.e., teachers' colleges) adequate rural schools, and public schools -- for white and black children. One year alone, he traveled 17,000 miles, articulating and arguing his message of the importance of quality public education for all of the South's children.

"Ignorance is no remedy for anything," Curry told one audience. "If the state has a right to live at all, it has a right to edu- cate. Education is a great national investment."

In 1881, Curry became the agent for the Peabody Education Fund. Nine years later, he became the agent of the Slater Fund as well. The former fund's purpose was to promote the "intellectual, moral or industrial education among the young of the more destitute portions of the Southern states"; the latter was focused specifically on providing educational opportunities for the South's former slaves.

“Dr. Curry is a native of the South, an ex-Confederate soldier, yet I do not believe there is any man in the country who is more deeply interested in the welfare of the Negro than Dr. Curry, or one who is more free from race prejudice," Booker T. Washing- ton declared of Curry in his autobiography. Curry died in 1903, still working for both funds. Two years later, the University of named its Curry Memorial School of Education in his honor, and in 1908, Alabama chose Curry to serve as one of its two representa- tives in the National Statuary Hall collection in 1908.

"It would be almost impossible to exaggerate the value of his work in the cause of Southern education," Harvard University declared upon his passing.

"As agent of the Peabody and Slater Funds, he aided more than any other one man to develop an irresistible public opinion for the education of the whole people, both white and black, in the Southern states," added The Cambridge History of English and

(Continued on page 12) BE A PART OF ALABAMA LEGAL HISTORY! JOIN THE ABBHS!

Your Annual or Special membership contribution enables the Society to fulfill its mission of preserving Alabama’s legal history, promot- ing better understanding of the legal system and judiciary, and recovering historical legal artifacts. Your participation provides for publi- cations, programs, projects, and grants.

ABBHS is a 501(c)3 nonprofit organization. Contributions are tax deductible, within legal limits, and will be acknowledged by ABBHS. Operations are financed by memberships in the Society and by contributions from the public. All society board members and officers serve without compensation.

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Gift Membership: Present the perfect gift to a history enthusiast or a fellow attorney—a gift membership to the Alabama Bench and Bar Historical Society. Please select the membership category that would be most appropriate, and email [email protected] that you would like to bestow a gift membership.

Please mail membership form with payment to: Alabama Bench and Bar Historical Society P.O. Box 722 Montgomery, Alabama 36104 Page 9 October/November 2009 COURT OF CIVIL APPEALS CELEBRATE 40 YEARS

Court of Civil Appeals

Presiding Judges

Judge T. Werth Thagard 1969-1972 Judge L. Charles Wright 1972-1987 Judge Robert P. Bradley 1987-1989 Judge Richard L. Holmes 1989-1989 Judge Kenneth F. Ingram 1989-1991 Judge William E. Robertson 1991-2001 Judge Sharon G. Yates 2001-2005 Judge John B. Crawley 2005-2007 Judge William Thompson 2007-Present

Judges

Judge T. Werth Thagard 1969-1972 Judge L. Charles Wright 1969-1987 Judge Robert P. Bradley 1969-1989 Judge Richard L., Holmes 1972-1989 The Court of Appeals was established in 1911 by legislative act. In 1969, Judge Kenneth F. Ingram 1987-1991 that Court (the Court of Appeals), by another legislative act, was abol- Judge William E. Robertson 1989-2001 ished, and the Courts of Civil and Criminal Appeals were created. Governor Judge B. J. Russell 1989-1993 Albert P. Brewer appointed three judges to serve on the newly-created Judge Charles A. Thigpen 1991-1997 Court of Civil Appeals: Judge T. Werth Thagard, L. Charles Wright, and Judge Sharon G. Yates 1993-2005 Robert P. Bradley. Judge Roger M. Monroe 1995-2001 The Court of Civil Appeals has original jurisdiction in all civil appeals where Judge John B. Crawley 1995-2007 the amount in controversy, or the amount of judgment, does not exceed Judge William C. Thompson 1997-Present $50,000. The Court also has jurisdiction of all appeals, regardless of the Judge Craig S. Pittman 2001-Present amount of controversy, from administrative agencies (other than the Ala- Judge Glenn Murdock 2001-2007 bama Public Service Commission), workers' compensation cases, and Judge 2005-Present domestic relations cases, including annulment, divorce, adoption, and Judge Terri W. Thomas 2007-Present child custody cases. The Court has jurisdiction over all appeals deflected Judge Terry A. Moore 2007-Present from the Supreme Court (Ala. Code 1975, Section 12-2-7; see below). Further, it has original jurisdiction of writs of mandamus and all other ex- traordinary writs within its appellate jurisdiction. Clerks of the Court In 1993, the Legislature called upon this Court to relieve the heavy Mr. J.O. Sentell 1969-1975 caseload of the Alabama Supreme Court by allowing the Supreme Court to Mr. John H. Wilkerson 1975-Present deflect certain of its cases to the Court of Civil Appeals for review. Legisla- tion was also passed which increased the number of judges on the Court from three to five. The Court of Civil Appeals is now composed of a Presid- The first reported opinion of the Court of Civil Appeals ing Judge, who by statute has served on this Court the longest period of was Brundidge Milling Company v. State, 45 Ala. App. time, and four Associate Judges. The decisions of the Supreme Court gov- 208, 228 So. 2d. 475 (Nov. 24, 1969). The appellant ern the holdings and decisions of the Court of Civil Appeals except for appealed a decree in equity from the Circuit Court of cases of first impression. Pike County which upheld a final assessment by the Department of Revenue of sales tax on the sale of A very limited spectrum of the United States has been represented by catfish food. The Court affirmed the ruling of the Cir- members of the Court of Civil Appeals - all former and present court mem- cuit Court, holding that the Legislature in exempting bers were born in the State of Alabama. gross proceeds of sales of feed for livestock and poul- try from taxation did not intend to include catfish within Members of this court have served in other judicial capacities, including the category of livestock (or, needless to say, poultry). County Solicitor (T. Werth Thagard), Circuit Solicitor (Charles Wright), Dis- The attorneys for the appellant were former Governor trict and Circuit Court Judges (William E. Robertson and Charles A. John Patterson and his partner Ted Rinehart while Thigpen), Circuit Judge and Supreme Court Associate Justice (Kenneth F. Attorney General MacDonald Gallion represented the Ingram), Circuit Judge (Roger M. Monroe and John B. Crawley), and District State. Judge (Terri Willingham Thomas). October/November 2009 Page 10

COURT OF CRIMINAL APPEALS CELEBRATES 40 YEARS

Court of Criminal Appeals

Presiding Judges

Judge Annie Lola Price 1969-1972 Judge Aubrey M. Cates 1972-1976 Judge John C. Tyson, III 1976-1977 Judge John O. Harris 1977-1982 Judge John C. Tyson, III 1982-1983 Judge John P. DeCarlo 1983-1983 Judge William M. Bowen, Jr. 1983-1988 Judge Sam W. Taylor 1988-1990 Judge John Patterson 1990-1992 Judge William M. Bowen, Jr. 1992-1995 Judge Sam W. Taylor 1995-1997 Judge Francis A. Long , Sr. 1997-2001 Judge H.W. McMillan 2001-2007 Judge Pamela Baschab 2007-2009 Judge Kelli Wise 2009-Present

In its 1969 regular session, the Legislature, by Act No. 987, 1969 Ala. Acts, Judges abolished the Court of Appeals and created two intermediate appellate courts: The Court of Criminal Appeals and the Court of Civil Appeals. The Judge Aubrey M. Cates 1969-1977 three judges on the Court of Appeals, Judges Annie Lola Price, Aubrey M. Judge Reneau P. Almon 1969-1975 Cates, Jr., and Reneau P. Almon, were assigned to the Court of Criminal Judge John C. Tyson, III 1972-1991 Appeals. The Alabama Legislature in 1971 increased the number of judges Judge John O. Harris 1972-1985 on the Court of Criminal Appeals from three to five judges. Governor Wallace Judge John P. DeCarlo 1972-1983 appointed John C. Tyson, III, and John O. Harris to the Court in 1972 to fill Judge John G. Bookout 1975-1982 the two new judgeships. Judge William M. Bowen, Jr. 1977-1995 The Court of Criminal Appeals is presently a five-judge court having exclu- Judge Bishop Barron 1982-1983 sive appellate jurisdiction of all criminal cases. The Court has the authority Judge Sam W. Taylor 1983-1997 to issue remedial writs necessary to give it general superintendence and Judge Hubert L. Taylor 1983-1984 control over all trial courts exercising jurisdiction in criminal proceedings. Judge John M. Patterson 1984-1997 Judgments of the Court of Criminal Appeals may be reviewed by the state Judge H.W. McMillan 1985-2007 Supreme Court. The Court of Criminal Appeals consists of a Presiding Judge, Judge Mark G. Montiel 1991-1995 who is selected by the members of this Court for a term of their choice, and Judge 1995-2007 four Associate Judges. Judge Francis A. Long, Sr. 1995-2001

Several members of this Court have served in other judicial capacities, Judge Pamela W. Baschab 1997-2009 County Solicitor (Hubert L. Taylor), District Judge (Sam W. Taylor, Sue Bell Judge Jean W. Brown 1997-1999 Cobb, Pamela W. Baschab, and Samuel Welch), Circuit Judge (Reneau P. Judge Jimmy H. Fry 1999-2001 Almon, Sam W. Taylor, Mark G. Montiel, Frank A. Long, Sr., Pamela W. Bas- Judge Alisa Kelli Wise 2001-Present chab, and Samuel Welch), Supreme Court Associate Justice (Reneau P. Judge 2001-2009 Almon and Greg Shaw), Supreme Court Chief Justice (Sue Bell Cobb), Mu- Judge Samuel H. Welch 2007-Present nicipal Judge (Bishop Barron and James Allen Main), and City Attorney Judge Mary Becker Windom 2009–Present (Hubert L. Taylor and James Allen Main). Additionally, John Patterson Judge J. Elizabeth Kellum 2009–Present served as Governor and as Attorney General. Judges Greg Shaw and Kelli Judge James Allen Main 2009-Present Wise were elected to positions on the Court of Criminal Appeals while serv- ing as staff attorneys for justices on Alabama's Supreme Court. Judge Beth Kellum was elected to the Court of Criminal Appeals while serving as staff Clerks of the Court attorney for a judge on the Court of Criminal Appeals. Judge Charles R. Bricken 1969-1971 The Court of Criminal Appeals had the distinction in 1997 of being the first Miss Mollie Jordan 1971-1990 appellate court in Alabama to be served by a majority of women, and one of Mr. Lane Mann 1990-Present only two states to have had a majority of women serving on any of their appellate courts. Page 11 October/November 2009

HOW GARY COOPER AND PAULETTE GODDARD PREJUDICED AN ALABAMA JURY.

When Deputy Sheriff Werth W. Thomas went to the Ritz Theater in Greenville, Alabama, on the night of Monday, October 25, 1948, he had no idea that the movie he saw that night, UNCONQUERED, would cause any trouble at all, much less be the reason for a new trial in a mur- der case. The problem was not that Deputy Thomas went to the movie; the problem was who he took with him: the jury sitting in the case of State of Alabama v. Archie Seekers, a local min- ister charged with murder. Unbeknownst to Deputy Thomas, UNCONQUERED, directed by the great Cecil B. DeMille, and starring Gary Cooper and Paulette Goddard, was a movie about the Indian wars in colonial America and contained multiple scenes of murder, mutilation, torture, and violent death. The day after seeing the movie, the jury found Seekers guilty of second de- gree murder. The attorney for Seekers, Calvin Poole, described by friends as “a very resource- ful lawyer, who has the uncanny faculty of being at the right place at the right time,” had found out about the jury’s “night at the movies” before the verdict and, concluding that he wanted to see the movie for him- self, that night, he attended the show. He did not like what he saw. The next day, Poole filed a motion for a new trial, submitting in support of his motion, three affidavits stating that the jury saw UNCONQUERED on Monday evening and describing the violent nature of the movie. The motion was denied and the defendant appealed to the Court of Ap- peals.

On appeal, Judge Robert B. Carr, writing for the Court, acknowledged that this was a case of first impression in Alabama, although not in other jurisdictions:

“We have been unable to find any case in this State in which the question of instant concern, in iden- tical factual form, has been reviewed. We do note, however, that our appellate courts have adhered strictly to the practice of carefully safeguarding the deliberations of the jury. To this end they have consistently recognized the importance of keeping the jury free from all outside or improper influ- ences.”

Fortunately for posterity, the Court quoted, in full, Poole’s affidavit. According to one source, Poole's affidavit was “a masterpiece of dramatic criticism as he graphically recounted the gory details and skillfully pinpointed the prejudicial effects” of the movie:

“At one point in the picture, one of the companions of the hero was shot by an Indian and killed. The arrow entered the exact point of the body-just below the left nipple-that had been demonstrated to the jury on my person by the two funeral directors just before the adjournment of the trial on the af- ternoon of October 25th. The scene was so realistic that I actually flinched when the arrow struck its victim. When he was hit, he fell from his horse and his death agonies were shown in all their terrible and gory details. It was impossible to disassociate the portrayal of the death on the screen from the death of Patterson, the deceased, as related by Mrs. Patterson in the Seekers case. In another scene, the wife of one of the leading characters was also shot through the heart, by a gun. Her death was likewise portrayed with all its agonizing suffering; and the blood of the victim flowed from a wound in the same spot on her person as had been portrayed on the witness stand in the Seekers case.”

Poole concluded:

“All in all, the picture was of such a nature as to leave in the minds of the jurors the recollection of death, suffering, and sorrow; and to blot all sense of proportion that should govern the mind of a ju- ror in the trial of the defendant who was entitled to have his plea of self defense tried without pas- sion and prejudice.”

The Court reversed and remanded the case for a new trial. Poole had won the case with the aid of Cecil B. DeMille, Gary Cooper, Paulette Goddard, and a cast of thousands!

Editor’s Note: The case is styled Seekers v. State and can be found at 44 So. 2d 628 (1949), cert., denied, 253 Ala. 420, 44 So. 2d 633. October/November 2009 Page 12 Preserving the History of Alabama

The Alabama Bench and Bar Historical Society is devoted to preserving the history of the state's judicial and legal system and making the citizens of ALABAMA BENCH AND BAR HISTORICAL the state more knowledgeable about the state's SOCIETY courts and their place in Alabama and United States history. The Bench and Bar is interested in preserving documents, artifacts, and memorabilia P.O. Box 722 of the courts, as well as of judges and members of Montgomery, AL 36101-0722 the state bar, and wishes to encourage the publi- Phone: 334.229.0565 cation of scholarly research on bench and bar E-mail: [email protected] topics. The Society especially wishes to preserve the biographical information and stories of attor- neys and judges who played prominent roles in the history of the state's legal system. To pursue We’re on the Web! its goals, the Alabama Bench and Bar Historical www.alabamabenchandbar.org Society may sponsor publications, exhibitions, displays, lectures, and public programs.

(Continued from page 7)

American Literature.

Unfortunately, America's collective sense of history is notoriously short, and it would probably be too much to ask of anyone -- or any state -- to remember such accolades a century later. Perhaps, then, it should come as no surprise that men like Curry find them- selves shouldered aside, their statues crated and packed off to distant, less heralded venues.

In fact, such displacement might not come as any surprise to Curry himself. As a Baptist preacher, he would have been well aware of the Bible's admonition that "a prophet is not without honor, save in his own country, and in his own house."

At least, in the instant situation, we can take solace that his replacement is an Alabamian as worthy as Helen Keller. Further solace comes from the fact Curry's statue reportedly will find a new home at Samford University. Perhaps one day, a local teacher might take a class of students to Samford's campus. At Samford, that teacher will be able to introduce his or her class to the multitalented man who crowned a lifetime of achievement with an unparalleled devotion to the cause of public education in his native South.

If a teacher does so, perhaps that will be at least one occasion where (with apologies to the former Baptist minister), the prophet will indeed have honor in his own house.

**This article was reprinted with the permission of the publisher from the October 11, 2009 Birmingham News.

About our Contributors Daniel Meador

Daniel J. Meador is Professor of Law Emeritus, University of Virginia; a member of the Ala- bama State Bar; former dean of the University of Alabama Law School, 1966-1970; the author of At Cahaba- From Civil War to Great Depression (Cable Publishing, 2009); and president of the Cahaba Foundation, Inc.

Jim Noles

Jim Noles, a graduate of the United States Military Academy and the University of Texas Law School, is a part- ner with the law firm of Balch & Bingham and a member of the board of directors of the Alabama Bench and Bar Historical Society. He is the author of several books and many articles on military and Alabama history.