Lawyer with a Gun

by Glenn Shirley

08/07/2014

Tension and a sweltering summer heat hung over the courtroom at Enid, Oklahoma Territory. All doors and windows were open to admit the breeze that never came. Outside, locusts hummed lazily. Nature seemed at a standstill as men wiped perspiration and waited.

Everyone in the room knew that he was witnessing a drama that would be long remembered in state history.

Judge John L. McAtee of the Fifth Judicial District presided. Actually, McAtee’s district embraced Woodward County, created from the extreme western part of the recently opened Cherokee Outlet; Beaver County (No Man’s Land); and four counties created from the 1892 opening of the Cheyenne-Arapaho reservations — Dewey, Custer, Day, and Roger Mills counties. Enid was the seat of Garfield County, in the Second Judicial District, presided over by Judge John H. Burford. The Second District also embraced Blaine and Washita counties, in the Cheyenne-Arapaho reservations, and Canadian and Kingfisher counties, created from Old Oklahoma in the opening of 1889. Burford was holding court in Canadian County; his dockets were loaded — as they often were in the more heavily populated areas — and McAtee had been called in to help try cases.

Black-robed despite the heat, Judge McAtee fanned himself and tried to look as dignified as possible on his high rostrum. In front of the bench was a table covered with law books and papers.

At the table sat a friendless cowboy being tried in a case that had originated at Grand, a frontier village on the north bank of the South Canadian River and seat of Day County. The horse-stealing charge was augmented by one of killing the animal’s owner, a Day County rancher, and feeling in the neighborhood ran high.

Day County was situated in the northwest corner of the Cheyenne-Arapaho country, on the border of the Texas Panhandle, where settlers were few and cattle-range customs still prevailed. In the fear that these people “might hurry up justice which they considered a little too slow to suit the popular demand,” a change of venue had been ordered to a “more civilized” locality.

The dead man had had the reputation of being a quick-triggered gunman, and the cowboy’s plea was self-defense. But witnesses testified that the cowboy had shot and killed his victim without giving him an opportunity to draw. It made no difference that he feared the rancher’s swift and deadly guns. It did not matter that he would have had no chance in a fair fight. The prosecution was demanding the hang rope. But many in the crowd were betting that the defendant would go free, for his attorney was Temple Houston, one of the Southwest’s most widely known criminal lawyers.

Temple Houston was 33, an age when most men enter maturity, yet he had lived far beyond his years. He had realized his ambitions in his profession early, mingled with the rougher element as well as the talented, and each day drained the cup of life. He stood six feet two, lean-hipped, never erect but slightly stooped and head down like a buffalo. His face held a sinister fascination for everybody who looked at him. Swarthy and somewhat gross in its largeness, it suggested the Indian and gave color to the false story that he was part Cherokee. His mouth, straight-lined and down-curved at the corners, suggesting cruelty, was a fit companion of his small gray eyes, furtive in their glances except when strongly arrested. When he smiled, his lips were tightly drawn across white, even teeth. When abstracted, he had a peculiar habit of toying with the auburn hair that flowed in curling locks about his shoulders.

It was his eccentric dress that first attracted a stranger’s attention and added glamour to his legends. He wore an extra-long black frock coat under which was slung “Old Betsy” — a white-handled Colt’s revolver that he never failed to secure at a single grasp — a yellow-beaded vest, and Spanish-style, satin-striped trousers cut with a bell flare over unusually small, box-tipped riding boots of the finest leather. Temple Houston never passed down a street without sparking inquiries about who he was; he was a sight not to be forgotten.

In addition he possessed qualities most frontier lawyers lacked. He was well educated, spoke French and Spanish fluently and seven Indian tongues, and quoted Greek scholars, the Bible, and Shakespeare. His every work and act were dramatic to the extreme, but behind his dramatics lay the reasoning of a brilliant mind — and fearlessness. His unique methods of impressing a jury had won him many a seemingly hopeless case on the Texas frontier. The crowd waited now to see how he would handle this one.

Soon after the trail began, Houston discovered that the prosecuting attorney had managed to select jurors who, although “good men and true,” were not particularly friendly toward the defendant. After the prosecutor had presented his witnesses and Houston produced none to refute them, the prosecutor summarized his case in an impassioned speech. Horse stealing, he explained, was not a crime to be countenanced. And when coupled with murder…

On this point Houston felt certain that the cowboy had acted in self-defense. Switching his coat tails, he took a stance as far from the jury box as the courtroom would permit. In low but quick, cutting tones he related the cowboy’s version of the events leading up to the slaying.

“Gentlemen, you have heard my client charged with a crime which was completely outside his realm to commit. He could no more have stood up to his malefactor than the spark from a lowly firefly could outshine the noonday sun — could no more have outshot him than the stubborn, plodding jackass could outrun the fleetest race horse. Such things, gentlemen, are utter impossibilities.”

As he spoke, he moved forward with his short, catlike steps.

“Gentlemen, this malefactor had a gunman’s reputation, while my client here is an ordinary, hard-working citizen like yourselves, little experienced in the use of firearms.”

He took another step toward the jury.

“My client was grievously wronged!” he suddenly cried. “He approached his malefactor in a spirit of charity and forgiveness, but this hard-hearted gunman spurned his friendly overtures and flew into a rage. When he saw this gunman coming at him, he knew that his life was at stake.”

Houston took one more menacing step, which brought him almost under the noses of the men in the box. There he bent over the pine railing, asking in his most confidential tone:

“What would any of you worthy gentlemen have done in the face of such a character? Do you have any idea how you would have fared against the lightening draw of a gun-artist — unless you had drawn first!”

The jurors leaned toward him, their nerves taut. Then, Houston tossed his long hair and roared:

“This malefactor was so adept with a six-shooter that he could place a gun in the hands of an inexperienced man, then draw and fire his own weapon before his victim could pull the trigger. Like this!”

And, before the men could blink their eyes, he whipped the white-handled Colt’s from under his frock coat, pointed the revolver directly at them, and emptied it rapidly.

Judge McAtee, judicial dignity forgotten, “made a hurried jump beneath the bench,” the defendant dived under the table, and the jurors “scattered like winter’s withered leaves.” Some of them leaped over the railing and joined the spectators in a stampede for the doors and windows.

With equally rapid movement Houston holstered his weapon and looked around, acting surprised and innocent. Judge McAtee peered cautiously from beneath the rostrum.

“Your Honor,” Houston chuckled, “you need not have been afraid. My cartridges were all blanks.”

“Judge McAtee returned to the bench. He ordered the bailiff to reassemble the jury. Then, glowing with wrath, he informed the distinguished Houston that he was of a notion to plaster him with a heavy fine notwithstanding his fame and prowess.

Houston bowed low and apologized for “any seeming disrespect for the person of this court — I only wanted to show what speed this dead man possessed.” In his most eloquent and convincing tones he talked the judge out of citing him for contempt, and the trial proceeded.

He made his point. The jury obviously felt that he had made fools of them. They found the cowboy guilty.

However, the skillful attorney was not licked. He immediately filed a motion for a new trial on the grounds that the jury had “separated during the hearing and mingled with the crowd.”

Judge McAtee, while unhappy over the affair, admitted that a strict rule of procedure had been violated. The new trial was granted.

In the same setting a few months later, with an impartial jury and Judge Burford presiding, the cowboy was acquitted.


From Temple Houston: Lawyer with a Gun by Glenn Shirley. Reprinted by permission of University of Oklahoma Press. www.oupress.com

Published in This Land, Vol. 5, Issue 14, July 15, 2014.