You May Take the Witness 9780292768444

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you May Zake Zhe Witness

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you May Zake Zhe Witness CLINTON GIDDINGS BROWN

Drawings by DOUG ANDERSON

Austin, 1955

University of Texas Press

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The names of members of my family, of my law partners and the claim agents, all names used in connection with the Brinkley trial, and the names of Judges Townes, Minor, and Anderson, of Dr. Lowry, Captain Ingoldsby, William Aubrey, E. S. Paxson, Theo. Picnot, Jim Davis, “Jack,” Ben Fisk, Charlie Ross, “Old Walt,” and Mr. West are the correct names of real people; but all other names used in this book are fictitious and are not intended to represent or refer to, directly or indirectly, any real person or persons, dead or alive.

Copyright © 1955 by the University of Texas Press Copyright © renewed 1983 First paperback printing 2014 All rights reserved Printed in the United States of America Requests for permission to reproduce material from this work should be sent to:  Permissions   University of Texas Press   P.O. Box 7819   Austin, TX 78713-7819  http://utpress.utexas.edu/index.php/rp-form

Library of Congress Catalog Number 55-8471 isbn 978-0-292-76843-7, paperback isbn 978-0-292-76844-4, library e-book isbn 978-0-292-76845-1, individual e-book

Contents 1. I Take a Jealous Mistress

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2. Good Case, Good Jury

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3. Dr. Brinkley and the Million-Dollar Goats

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4. They Took the Jury by the Hand

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5. And He Took the Witness

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6. Nothing But the Truth

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7. Big Dog, Little Dog

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8. Closed Lips Hurt No One, Speaking May

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9. The Jim Wheat Murder Case

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10. Horse Sense and Technicalities

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11. The Claim Agents: A Salute

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12. Banana Peels and Keyholes

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13. Surprise Parties

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14. The Ones That Didn't Get Away

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15. A Cup o' Kindness Yet

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you May take Zke Witness

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Persons attempting to find a motive in this narrative will be prosecuted; persons attempting to find a moral in it will be banished; persons attempting to find a plot in it will be shot. By Order of the Author, Per G. G., Chief of Ordnance. MARK TWAIN

The Adventures of Huckleberry Finn

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I Take a Jealous Mistress I am a retired lawyer, living in San Antonio, Texas. I've spent a good many of the working hours of my life trying cases before juries, and up until a few years ago it never occurred to me that the word "retired" would be applied to me. Other men retired—not me. But the time came when I began to have some suspicions on that score, and one day when I was trying to make a speech to a jury I got so dizzy I had to hold on to the corner of the court reporter's desk to keep from falling down. The doctors gave me an expensive going-over, but I could have saved my money, because they told me something I already knew. I'd put on too much weight and my blood pressure was sky-high, and they said I had to quit. I was not provoked. I was about ready to quit anyway. Jury work is awful hard work. The doctors earned their money in one way, though—they gave me, for the first time in my life, a perfect excuse for loafing. 3

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For a while I enjoyed the lazy days, and especially the lazy Sundays, when I could say to myself, "Thank the Lord I don't have to be ready for trial in the morning!" But the lazy days got too long, and there were too many of them. I found I was spending most of my time remembering things that had happened in the courthouse and thinking about one case or another that I had tried. Something that had happened a few years ago would remind me of something that had happened more than twenty-five years ago. A good witness would remind me of a bad witness. Recalling a bad licking might remind me of a wonderful victory, where I had beat the hell out of some fellow who had previously beat the hell out of me. Memory meanders around pretty much the way cows make paths—through sun and shade, stopping to drink at a waterhole here, standing still beside a fence there, lying down for a good siesta in the long grass sometimes. Not much rhyme or reason to it, but sooner or later the path turns out pretty well and you (and the cows) have arrived somewhere. One summer morning at about ten o'clock, when I was sitting on the front gallery, I got to thinking about what I could do to kill time, wondering if I couldn't try to get an easy job of some kind. I had to have something to do besides sleep and eat and read and smoke. And right then the idea popped into my head from somewhere—I don't know why—"I have nothing else in the world to do; I believe I'll try to write a book." It was exactly ten past ten when that novel and brilliant idea popped into my head. Off and on during the next several years I wrote the book you have before you. It is like my memories: there is very little plan to it, and I know there is no chronological order in it, except right at the beginning. If I had had to plan it 4

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exactly and get everything exactly in the right place, writing it would have been work instead of fun, and maybe I never would have finished it. But please don't think I'm exceptionally lazy. In my lifetime I have done a lot of hard work, which I enjoyed and stuck to, though I admit there were plenty of days when I wished I could go fishing. And if, after I quit work, my wife and my doctor had permitted me to go to the Texas coast and get in a boat, the chances are you never would have seen this book. But all I could do was sit there on the front gallery and fish with a lead pencil; however, I had some pretty good fishing. Some mornings I didn't get a nibble, but some mornings they were biting fine. I have caught two enormous bull reds, about two dozen fine speckled trout, a whole lot of little sand trout hardly worth keeping, and a boatload of worthless catfish. The catfish represent the memories that had to be worked loose from the hook in my mind and thrown away. They didn't get in the book. Some of what did get in was due to a request made to me by one of my twin sons about twenty years ago. When Clint, Jr., graduated from law school at the University of Texas, he came in with our firm. He sat behind me in several trials, and we had some long talks about jury work, a subject he seemed to think I ought to know a good deal about, because I had been at it long enough. And one day he asked me to write him a letter on the matter, so he could study it over now and then. I was very much pleased and complimented by his request, and so I wrote the letter and hoped that he would get some benefit from it. My work from day to day throughout the years, my wit-

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nesses and my jurors, my contests with the "ambulance chasers" good and bad, my victories and my defeats, my glad moments and my sad moments, all combined to make me egotistical enough to think I could write advice on how to try a case before the jury. But any such letter, even one written by the best trial lawyer that ever lived, is bound to touch only the high spots, because in a jury trial something may happen in the next moment that has never happened before. I know, because many such things happened to me. That letter to Clint is at the end of the book (and maybe some other young lawyer can learn something from it that will help him win his case), and from here to there are those fish I caught on the front gallery, being some of my adventures in the courthouse. Many of the stories are entirely true; others are made up of incidents that happened in several cases, combined into one case in the telling. Some of the names arefictitious,for obvious reasons. I admit that some of the stories are scrambled and seasoned up quite a bit, but I have tried to paint a true picture of what happens in the life of a busy trial lawyer, and, taken as a whole, there is very little fiction in the book. The fiction content in the stories varies all the way from the Jim Wheat case, in which I turned my imagination loose, to the Brinkley trial, which I couldn't have disguised or improved on if I had wanted to. (Of course, if you think you see yourself in any chapter, that one is fiction.) All of the foregoing was written after the rest of the book was finished. *

*

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My name is Clinton Giddings Brown. I was born in the little town of Brenham, Washington County, Texas, in the year 1882, the son of John Nicholas Brown, born in Vir-

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ginia of Scotch-Irish descent, and of Annie Giddings Brown, born in Texas of English descent. I am very proud of the fact that my family has been in this country for a long time. When I was eight years old we moved to San Antonio, where my father became the cashier in the Alamo National Bank, which he helped to start. Ifinishedgrade school and high school, attended Harvard College for one year (but don't let that worry you any), took a tramping trip through Europe, managed to get my academic and law degrees from the University of Texas with the assistance of a somewhat indulgent faculty, and came back to San Antonio to practice law in the year 1906. In college I took more courses in English than in any other subject, but, in trying to write this book, I am not going to worry myself too much about grammar. If I had worried myself about grammar in making speeches to the jury, the speeches would have been worse than they were. While I was in the university I was editor of The Daily Texan, played fullback on the football team, was head comedian in a comic opera, was on the students' council, led the final ball but never led a class, and wrote a book. The name of my book was Ramrod Jones, and it was so far as I know the first book ever written for boys about the Texas revolution against Mexico. It was paid for and published by the Saalfield Publishing Company of New York City. It would be a mistake to say it was a howlingfinancialsuccess. The summer I wrote Ramrod Jones, Theo. Picnot, who was a neighbor about my own age and a good friend of mine, was learning to use the typewriter, and he said he would just as soon practice on my manuscript as on anything else, and I said if I ever sold it I would pay him for his work. For my book I got glory and $50.00 in cash, and I gave Theo.

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$25.00 because I figured he had worked about as hard as I had on it. When the book came I liked the four illustrations very much. They were by E. S. Paxson, and the big original drawings cost me $25.00. They are on the walls of my room right now, as I begin my second book. I was twenty-two years old when I wrote Ramrod Jones; I am seventy-two years old now. When I took up the business of law I retired from the writing business, and since then the main things I have written have been applications for continuance, motions for new trial, and briefs for the appellant. About a year after Ifinishedlaw school I got married, and about two years later our twin boys, Robinson and Clinton Giddings, Jr., were born. I had hung out my shingle at the door of a little office building that housed the Alamo National Bank, of which my father was then president. Most of my work as a lawyer was to be done in the courthouse, but my first client employed me to do a job of office work, in a realm that was then more mysterious to me than a murder case would have been. Some three weeks after I hopefully opened my office my father brought in a young Negro, about thirty years old, and said he was Charlie Ross, an old customer of the bank, a good man, and that he wanted to employ me to examine an abstract. My father left and I asked my first client to have a seat. Charlie Ross sat down and put the abstract on my little flat-top desk. He told me that he had a wife and three children and that he had worked for the I. & G. N. railroad for a long time. He had now worked up to where he was a regular train porter on the St. Louis run, and so he and his wife had finally decided to buy a home, but he wanted to be sure he was getting a good, clear title.

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He said his brother-in-law had had awful bad luck trying to buy a home, thinking he'd be smart and save money by not getting a lawyer to see about the title. He and his wife just trusted the real estate agent and went ahead and paid $125 as a down payment and moved in. Just after they had made the second monthly payment, a man—a stranger to them—came to the house and said he had a written mortgage on the house and they would have to get out if they didn't pay up the back interest. They tried to fight him, but the long and short of it was that before long the law came out from the sheriff's office and put brother-in-law and his furniture and his wife and kids and the whole outfit right out in the middle of the street, and they lost the down payment and the two monthly payments. Charlie Ross said he had known my father a long time, and trusted him, and so he trusted me. He pushed the abstract across the desk to me, stood up, and said, "You go to work on it. I'm gettin' good wages now and will pay you good money, because I just feel like if you tell me my title is good there ain't nobody ever gonna put us outa the house." That abstract of title was onlyfifty-twopages long, but it seemed to take in every phase of real estate law—administration of estates, incorporation of companies, foreclosures, trespass to try title suits, location of corner stones, field notes, divorces, proof of heirship, descent and distribution, etc. and etc. To a trained abstract examiner, the matter would probably have been very simple, but to me every new page was a new mystery. On my floor in the building was the law office of William Aubrey, one of our most prominent attorneys, and he had just about the best law library in town. I would study carefully a page or so in the abstract, then spend the rest of the

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day in Mr. Aubrey's library reading law books, trying to find out if that page was all right. In a month I learned more law than I had learned in a year at the university. My client was gone several days a week on his run, but when he got back in town for his layover and even before he went home, he would always come to my office to see how I was getting along with the abstract. On his first visit I was poring over the abstract in my office, and I told him if I was not in when he came I would be in Mr. Aubrey's library. He always found me in one place or the other, hugging his abstract. After five weeks I told Charlie I was about finished with the examination of the abstract and asked him to come in on his next day off, when we could settle up and talk things over. But I didn't know what fee to charge him. I talked it over with a friend of mine who worked in an abstract office, and he said the amount of the fee depended on the length of the abstract and the value of the property. That didn't help me much. Charlie was going to pay a total of $1,100 for the house and lot, and he had to make a down payment of $150. So, taking everything into consideration, after much thought I decided to charge him $15.00. When he came in several days later, I had my letter on the title all ready for him, saying his title was good, except that the city tax statement claimed that taxes on the lot had not been paid for the year 1899. He asked me how much he owed me and I said, "Fifteen dollars," and he said, "That's fine. That's just fine," and laid three gloriousfive-dollarbills on my little desk. About the city taxes for 1899, I told him I had phoned 10

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the back-tax office but couldn't get the matter straightened out, but I believed there had been a mistake and if we went to City Hall we might be able to find out what the trouble was. Charlie and I spent about an hour in the back-tax office, taking down one big volume after another, and we finally discovered there had been a mistake in the block number of the lot. We showed the mistake to the chief clerk and got a signed certificate from him that all current and all back taxes on the lot had been duly paid in full. As we came out of the east door of City Hall, Charlie stopped on the top step and said, "Wait a minute, Mr. Clint. You has done such a good job for me, and has worked so hard on it that I want to pay you some more money," and he put two silver dollars in my hand. That was forty-eight years ago, but I could take you there now to that top step and point out exactly where we were standing that morning, and I would not miss it by even one inch. About a year later I went to my first political meeting, and as I entered the hall and was going down one aisle, I heard someone call from the other aisle, "Hey! Mr. Clint!" and there was Charlie Ross. He waved both hands violently above his head, and called out in a high, merry voice: "Hey! Mr. Clint! Ain't nobody put us out yet," and then he slapped both hands down on his knees and doubled over with laughter. Every now and then throughout the years, no matter where he was, or how far away he was, across the street, in the bank, at the courthouse, out at the I. & G. N. depot, as soon as he saw me he would wave both hands above his head and I would again hear that high-pitched, merry call, "Hey! Mr. Clint! Ain't nobody put us out yet," and then he would 11

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slap his hands down on his knees and double over with laughter. And regardless of what I was doing or where I was going, it always made me feel good. The last time I saw him was about ten years ago when I was out at the I. & G. N. depot, seeing someone off on the train. As the train pulled out on the St. Louis run, old Charlie Ross was on the back step of the last Pullman car, hanging on to the hand-hold with one hand and waving his cap violently with the other, and hollering at me. Because of the distance and the noise of the train, I could not hear what he was hollering, but I didn't have to hear. I knew what he was hollering, and I hope nobody ain't put 'em out yet. Well, that was my first job of work. It wasn't quite the only one, of course, but for a while I wondered more than a little about some advice Judge Townes, one of our main professors in law school, had given us. He used to tell us over and over again, "You keep to your office and your office will keep you. The law is a jealous mistress." I kept to my office all right, but my office seemed to be lying down on its part of the job. And there was another thing in the beginning that troubled me very much. The few times I had a chance to appear in court I would have nervous indigestion, because I had not gained any confidence yet and was so afraid that I might make a mistake and lose the case. Several times at noon I had to go to the office of my good friend Dr. Tod Lowry, a stomach specialist, and he would stick that rubber thing down my throat and into my stomach and pump out my stomach, and then I would go back to the courthouse and try to make a jury speech on a pumped-out stomach. The main question involved in my first jury case may 12

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seem a small and silly matter. But it was not small to me. It was the most important thing in the world. The main question in the case was—what is the value of a dead deer? I was an old deer hunter and well qualified as far as the facts were concerned, but the law of the case was difficult. Through workouts in the gym at the YMCA, I got acquainted with a fine young man by the name of Thomson, who was a drummer in the hardware line. When he was in town he lived at the Russell House, the biggest boardinghouse in the city. In his spare time he was a deer hunter. At the Russell, Thomson met a girl who worked at the post office. He told this girl especially, and everybody else at the long dining-room table who would listen to him, all about what a wonderful deer hunter he was. And he told them that just before Christmas he was going to his favorite hunting place near Laredo and that he would send them a deer to have for Christmas dinner. He even went so far as to tell the landlady that he was so sure he would get one that she needn't bother to buy any turkeys for Christmas. Before he started on the deer hunt, he had'told the girl that he had a chance to buy a nice little cottage in the West End at a very reasonable price, and had asked her how she liked West End, and she had said, "Oh! Just fine." (A lawyer should find out everything, if he can.) You know how it is at the table in a big boardinghouse. They piled it on Thomson about that deer he was going to send in. One of the boarders told the landlady that he wouldn't count on it too much, and if she didn't get some turkeys she had better lay in a good supply of hamburger meat for Christmas dinner. (You may not realize why I am 13

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telling you all this, but it was the essence of the law of my case.) Thomson got a nice four-pointer, young and fat, and shipped it off to the Russell House by express. He sent this telegram to the girl, "Young buck will arrive before Christmas. Expect me for dinner." He got there in time for Christmas dinner all right, but the deer didn't. There were a good many deer shipped at that time of year, and of them all, the express company had to lose Thomson's deer. I won't take time to relate what that boardinghouse bunch did to Thomson—they did plenty. He hired me to sue the express company,fifty-fifty.That was my first jury case. On the question of the measure of damages, the rule as to allowing damages for "sentimental value" is usually applied only to such things as heirlooms and family antiques. I had to try to apply it to a dead deer. In my mind I absolutely knew that Thomson's deer had a "sentimental value" far above its actual market value, which is the usual measure of damages. How to prove it was another story. I went to*work. Once again I spent most of my time in Mr. Aubrey's wonderful law library. I ran the digests, and I guess I read every case on "Measure of Damages—Sentimental Value" that had ever been decided in any of the higher courts in any of the states. The claim agent of the express company offered $2.00 to settle the claim, and after due consultation Thomson and I turned it down. Old Judge Townes had often told us at the university never to guarantee a client that you can win a case, because the reactions of judges, and more especially of juries, are too uncertain; but we did have the original receipt for the shipment of the deer and Thomson was feel14

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ing mighty bad, and so I disregarded Judge Townes' advice and told Thomson I was sure we could win the case for some amount, make the express company pay the costs of court, and get a judgment that would fully vindicate him in the minds of the girl and the other folks at the boardinghouse. I felt that I could get by with my theory of "sentimental value" in the justice of the peace court, especially if I could get a deer hunter on the jury, because in that court the jury is the judge of the law as well as of the facts. I filed suit in the justice court for $99.00. I had in mind to put on the witness stand the girl and one other witness from the boardinghouse, in addition to Thomson, to prove up my theory of "sentimental value." They had hammered it into us at the university to know your witnesses and what they are going to swear to before you ever put them on the stand, so I got Thomson to take me to the boardinghouse. I was very much pleased with the girl. Then I interviewed the other boarders separately. One of them talked too much, one was too dressed up, and one chewed gum all the time, but finally I found just the one I was looking for. He was a young shoe salesman from Joske's store. He remembered all about the whole thing, and he talked and looked just the way you would want your witness to talk and look. The big day finally arrived, and the justice of, the peace called our case for trial. I glanced back to be sure my three witnesses were there, announced ready for trial, and demanded a jury. In the justice court you have only six jurors and you have only three challenges, but I managed to get two deer hunters on the jury. I introduced the receipt in evidence, and then I put my three witnesses on the stand, and they stood up just fine,

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both on direct and on cross-examination. They got over strong the idea of the "sentimental value." And in my opening speech to the jury I carefully explained the idea of "sentimental value," and read them the decision of an appellate court that approved a judgment for a hundred dollars' worth of damages for the loss of a locket, with a curl of hair and a picture in it, when the proof showed that the market value of the locket was about three dollars. The extra ninety-seven dollars was for "sentimental value." In answering me, the lawyer for the express company almost cried in admitting that my locket decision was the law and was fair and right, but then he sneered and laughed and made fun of the idea of stretching the locket case and "sentimental value" far enough to cover the carcass of a deer. I was pleased to see that he seemed to forget all about those two deer hunters on the jury. The jury assessed the court costs against the express company and gave us a verdict for $99.00. I had won my first jury case. It was glorious! Just glorious! And most important of all, the judgment I wrote satisfied even the skeptics at the boardinghouse. Thomson was my client until he died, and off and on sent me a nice piece of business. Several years after we tried our case, I was invited to Christmas dinner at the cottage in West End. All through the meal the second generation of Thomson deer hunters, who was in his high chair close to his mother, kept shooting at my head with his paper Christmas gun, "Pow! Pow! Pow!" and we had one of the finest, juiciest venison roasts I ever ate in my life. Win or lose, the slow times in my practice weren't over in a hurry, but little by little things picked up a bit, and when I was twenty-nine I was elected district attorney. 16

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That was in 1912. My father had a big Stoddard-Dayton seven-passenger. Since he and my mother and sister would be away for the summer, he loaned me the car and old Joe, the colored driver, so I could campaign out in the country. In addition to me, Joe usually transported old Judge Minor who was running for district judge, our Irish candidate, the jovial Jim Davis, who was running for county judge, and two or three other candidates. We had a complete courthouse ticket in thefield.We did most of our campaigning at country picnics, dances, turkey shoots, and bowling matches, and we furnished the keg beer and the cigars. Joe realized that the campaign offered some wonderful financial possibilities, and he armed himself with a long whisk broom and a big yellow shoe rag. At the first country gathering we went to, Joe got out of the car ahead of all the others, gave each of us a few taps on the back with his whisk broom and made a swipe at our shoes with his big yellow rag, and said, with a modest smile, "I wants my candidates to look spick an' span." Of course, at the end of a day each one of them gave Joe a little tip for his attention; that is, all of them except the old judge. I don't believe the judge was stingy; he was somewhat absent-minded and a tip probably never occurred to him. Jim Davis, the Irishman, after several trips noticed that Joe got tips from everyone except the old judge. One day, after the judge got out of the car at his home, Jim asked Joe, "Well, Joe, how are you making out with the judge?" "No luck so far, but me and the judge will fix everything just fine before election day." After that Joe whisked the back and swiped at the shoes of the old judge with a real flourish, but still got no results,

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and every few days Jim Davis asked him the same question, and got the same answer. On the day before the election, Jim Davis asked Joe the question again. This time Joe smiled broadly. "Oh, me and the old judge fixed up everything just fine, just like I told you we would. Yesterday I told him my wife is sick, and borrowed three dollars off of him." I was the only one who knew that Joe had no wife, and I kept my mouth shut. We all got elected, and Joe said he hoped I'd run for something every year. I have always been glad that I was district attorney for only a short time, because, although I worked as hard as I could at it, I did not really enjoy the job of trying to punish people. I know it is very important work and somebody has to do it, but I would rather have someone else do it. The next year, in 1913, I was elected mayor of San Antonio. I was re-elected and served altogether four years, and my name is on four of the downtown bridges, all of which have managed to remain standing. I quit at the end of my second term because we had declared war on Germany and I wanted to get in the Army. My folks had always been in on a fight ever since 1776.

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Good Case, Good Jury I was thirty-six years old when I got out of the Army. I collected my wife and the boys from Austin, went back to San Antonio, got located in our house (which had a mortgage on it), and faced the prospect of trying again to build up a law practice. We had not been able to get ahead any on my salary as an Air Force captain. I was a ground officer, not aflyer,and I did not get any medals. But I got one citation. It was for "Ignorance and Insubordination." While I was in the Army I made one of the best friends I ever had in my life, Captain J. L. Ingoldsby. At this time one of the leading law firms in San Antonio was Templeton, Brooks and Napier, corporation lawyers, so-called, handling legal affairs for the gas and electric company, the streetcar company, the bus company, the Southern Pacific Railroad, insurance companies, and so on. Many

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personal-injury damage suits are filed against such companies, and the firm always had a crowded court docket. The young lawyer who had formerly tried suits for them had been killed in France. The junior member of the firm, Walter Napier, had been a schoolmate of mine, and we had played high-school football together. He'd grown up to be a good, smart lawyer and a hard worker. I think it was probably his influence (perhaps based on football memories) that brought me the offer of the job as the firm's trial lawyer. But whatever did it, I was very happy about it. During the next twenty-five years, though I never did figure it up, I guess I tried as many contested jury cases as any other lawyer in San Antonio. After I went with the firm, the first thing I did was to look for books on "How to Try a Case Before the Jury." I finally got hold of six books on the subject and studied all of them, but the one I got the most good out of was a little one called American Advocacy. All of my cases were jury cases, because a damage-suit lawyer always figures that he has a better chance before a jury than he would have before a judge, and all except four were tried in San Antonio. I never tried a case outside of Texas. But there is nothing to being a trial lawyer except hard work and some knowledge of human nature, and I guess these two things are about the same in all of the states of the Union, just as judges, jurors, witnesses, liars, "ambulance-chasing" lawyers, and expert-swearing doctors are probably about the same everywhere. (And I might as well give you my definition of "ambulance chaser" now, because it's a term that will come up often: an "ambulance chaser" is a lawyer who, contrary to the ethics of the legal profession, solicits employment in personal-injury cases, di20

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rectly or indirectly. I'm not kicking about it, I'm just commenting. Of course, not all lawyers for the plaintiff are ambulance chasers.) When I was on my tramping trip through England, I saw a trial in London. The judge and lawyers wore long black gowns and white wigs. We didn't do that in Texas, but in the early days (before my time) the judge did require everyone to deliver his six-shooter to the deputy sheriff at the door. In my day, the judge, jurors, lawyers, and everybody else smoked and chewed tobacco. During hot weather judges would let the jurors come without their coats (twelve jurors are twelve votes), but I knew only one judge who would let the lawyers leave their coats at home. He got old and fat, but he held office until he died, which perhaps proves that lawyers know how to vote, too. Outside of criminal cases, I guess about ninety per cent of the contested jury trials are personal-injury damage suits. One person, or a company (and, as subtly hinted by the plaintiff's lawyer, usually a "rich company") hurts another person, and the person who gets hurt (or who says he got hurt) sues the hurter for damages. If the person was killed, his heirs do the suing. That is what is called a personal-injury damage suit, with the man who got hurt being from then on called the plaintiff, and the other side, the defendant. I put in the biggest part of my life fighting the ambulance chasers and trying personal-injury damage suits before a jury. We didn't then have women on juries in Texas. I worried enough about the twelve men on the jury; if there had been women mixed up with it, I know I would have worried more. I believe it is the Germans who have a proverb—"Well lathered is half shaved." Applied to a lawsuit that proverb

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should be "Well prepared is more than half tried." Before the gong rings, you should know everything you can possibly learn about the case, interview each of your witnesses carefully and at length, visit the scene of the accident at the hour of day or night that it happened originally, and get your mind and body in good shape by getting plenty of sleep, watching your eating, and on the day itself, wearing some comfortable clothes for the battle. After it starts, you'll have lots of fun and excitement, but you won't have much time for anything else. Throughout the years I opposed many lawyers in the courtroom who were quicker and smarter than I was, but I'm pretty sure none of them worked harder trying to get ready or took more interest in the trial after it started than I did. It is very important to make as good an impression as you can when you and the other lawyer are examining the panel before the jury is finally chosen. After the jury panel had come in and before the questioning of its members began, I was always quite content to let the other lawyer lord it around, light a big cigar, put an expensive brief case stuffed fat with documents on the table, call out to the clerk to bring him the papers in the case, choose his place at the head of the counsel table, and take charge of things in general. When the Court asked if the plaintiff was ready in the case, I liked it fine when the other lawyer would rise and say in a loud, important voice, "Yes, Your Honor, the plaintiff is ready." Most of this time I would not even be at the counsel table. I'd be sitting on a bench with some other lawyers not in the case, and the jury panel didn't know that I was in the case. When the judge looked over at me and asked me if

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the defendant was ready, I would half rise and nod to him. Not until the judge told the clerk to hand the jury lists to the attorneys would I come forward, take the list from the clerk, and at once sit down on my side of the table. I'd sit there quietly and say nothing and do nothing until I had to. I had no brief case—I never carried a brief case into a courtroom in my life. All the papers I needed were in my pocket. I might roll a cigarette with Bull Durham tobacco and a brown paper, but I never lighted a cigar. One time I had against me an annoyingly loud-talking and overconfident opponent. Court had just opened. The jury panel was there, and we had received the lists from the clerk but had not yet started to question the panel. My opponent sat at the head of the lawyer's table next to the jury box, and I was at the head of the table on the other side. The judge was a kind old man, but he was cranky about having newsboys and bootblacks interrupt his court. As we waited to start questioning the panel, he was on the bench glancing over the pleadings. A'newsboy came in, passed right in front of the bench, and said, "Paper, Mister,'morning paper." The judge looked up and then hollered, "Here, boy, get out of this courtroom!" The little fellow ran out, and the judge went on reading the pleadings. We were still just sitting there waiting for the judge to tell us to proceed when another newsboy came in, a little fellow I had never seen before. He was so quiet the judge didn't notice him. He walked past me and toward my opponent, who looked up, glanced at the judge, and then said, in a harsh voice, "Here, boy, get out of this courtroom!" It seemed to me this was no business of his. He wasn't 23

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the judge or the sheriff. The boy turned, with a frightened look on his little face, and as he passed me I said, pleasantly but loud enough for the whole panel to hear, "Here, son, give me a paper." I knew I had drawn first blood. I had started that lawsuit right. I was in the outfield. Strike-a-one. A little thing like that may win you the jury better than the best piece of evidence in the world. I'm glad to say that when the verdict was read, my honorable opponent lost some of his confidence. There was a similar little point I used many a time in panel questioning. Suppose a man on the jury panel said he was in the grocery business but didn't specify in what capacity. If he seemed a fairly modest man and looked somewhat prosperous I would ask him what kind of work he did in the grocery business, because my guess was that he would be pleased to be able to say (without seeming to brag, since I had forced him to say it) that he was one of the big shots in the store. But if he looked as if he might be the porter who swept out the store I would not force him to admit that he was nothing but the porter, for that would not please him. The law and the evidence are not the only things in a lawsuit; often it's the breaks and the conduct of the trial lawyers that win or lose. Take the time when I was representing a good-looking young widow. She owned and operated one of the big traveling carnival shows on the southwest circuit. Her husband, who had recently been killed in an accident, had always wintered the show in San Antonio, and so she brought the show back here as usual for the winter and rented a big old warehouse to house the animals, the freaks, the gambling devices, the whirligigs, and other equipment. She had a night watchman whose duty it was to see that everything 24

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was safe and sound. One night he got drunk, stepped through a weak board in the floor, and broke his leg. He then sued her for $25,000, claiming she had not furnished him a safe place to work in. (That was what he was hired for—to keep the place safe.) She was present at the trial. Your clients must always attend trials from beginning to end, otherwise the jury will think they are so rich they don't care anything about the outcome. On the jury panel there was a mean-looking fellow. He wanted to hurt my case and I knew it, and everybody who heard him knew he wanted to hurt me and my client and my case. He said he had known me when I was mayor, and that I had given him a low-down, dirty deal, though I couldn't remember that I had ever seen him before. Of course, the judge excused him and did not charge the challenge to me. I forgot all about him and we went on questioning the other men on the panel. In the process of questioning I always asked my clients if they knew anyone on the panel and had any ideas as to who should be cut off. (They usually didn't, but it's courteous to ask them.) My client was sitting with her back to the rail that separates the bar from the public benches. I put my left arm and elbow on the rail and leaned down to ask her if she knew anyone on the panel, and then I felt someone trying to push my arm off the rail. It was that juror who'd been excused. He was sitting right behind my client and he kept on pushing and I started pushing back. (My father used to tell us boys that if we wanted to keep out of fights never let the other fellow touch us.) He stood up, and he was a little bigger than I was. I had a very poor stance—my toes against the rail, my stomach

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against the rail—and no time to get set, so all I could manage was a short right-jab that had nothing behind it but the shoulder, arm, and fist, but I let him have all I had to offer right in the middle of his face. The deputy sheriff got to us right then. That's all there was to the fight, and I don't recommend the technique, but every man on the panel knew I had a right to that jab. I won the case, and I think when I hit that so-and-so is when I won it. In the big cities of Texas, including San Antonio, the panel is drawn from the jury wheel. Each year between August 1 and 15, the names and addresses of all taxpayers in the county are written on small, strong cards, which are placed in the wheel. The wheel is turned to mix up the cards; when a jury is needed enough cards for the week are taken from the wheel by the judge, one at a time, in the presence of a deputy district clerk and a deputy sheriff. Nobody can stack a panel drawn from the wheel unless the district judge and the two deputies are all three crooked, which isn't likely. When the big wheel turns, what names come out to be on your list is a pure gamble, just like a roulette wheel— "Round and round the little ball rolls, and where it will stop nobody knows." We had some hard times cutting a jury, but my senior partner, old Judge Howard Templeton, who was one of the wisest men and greatest lawyers I ever knew and who had had many years of experience in picking juries, used to say: "Boys, don't worry about your jury. If you have a good case, you'll have a good jury. You might as well let a blind man pick 'em, but don't underestimate your jury. Your jury will be all right."

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However, in many of the 254 counties in Texas the commission system is used—the judge at each court term appointing three citizens to serve as a commission to select the men who will compose the jury panel. While I have had very little experience with this way of choosing the panel, I understand that most of the time it works fairly and satisfactorily. The commissions usually choose men well-qualified to be jurors; but it seems to me there are some dangers in the method. (During the dark KKK days I heard some bad rumors about this very thing.) Every lawyer knows how many challenges he has to cut his jury, and he will try to use the cuts as wisely and expediently as he can. But suppose somebody stacks the panel on you before you get started. The jury system of finding the facts is the best system I ever heard of, but if the whole bunch the deputy sheriff brings into the courtroom from which you must choose your jury happened to have been hand-picked and stacked, the jury system would become a farce. And stacking could happen under the commission system, whereas it is well-nigh impossible to stack a jury wheel. If I am the lawyer on one side of a lawsuit and you are the lawyer on the other side, I will agree that we will go down at once to the busiest corner of Main Street in any town in Texas (but I will not let you out of my sight after I make this agreement!) and take the first twenty-four men who pass, and, after questioning them, you can scratch six of them off and I'll scratch six of them off, and I'll be satisfied to try my case before the remaining twelve. But I will have made very sure that we did get the very first twentyfour who hit the wire. Nobody has hand-picked and stacked that panel on us.

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Take twenty-four men: among them may be some bank presidents, some laborers, some college men, some who can barely read the newspaper; some who are prominent, some insignificant, some white, some black; some Protestants, some Catholics, some Jews. Assemble the twenty-four fairly, with absolutely no shenanigans, and let each side question them fully, and let you scratch off six of them, and let me scratch off six of them, and the twelve who are left, using the wisdom and knowledge of human nature gained in their twelve varied lives, will come as near as anybody in the world to deciding what is fair and decent and honest and right. That kind of jury is not a slice across humanity from one side to the other. It is not a slice from the bottom, or from the middle, or from the top. It is an up-and-down slice, a slice from top to bottom. The members of it do not represent the labor unions, or the capitalists, or the downtrodden poor, or the arrogant rich, or the sinners, or the bigots. They represent nobody and everybody. They are just men, as God Almighty made them, and He knew what He was doing, and, with all their faults, they are the best of all His creatures. If I am to be tried for any of my sins, please let me be tried by such a jury, not by a stern judge. And this is the kind of a jury you get from a jury wheel. Some lawyers believe many of the names should never have been in the wheel; but once the names are in there they are shaken up, like one hundred thousand pebbles on the beach, and nobody dictates what names should be drawn out. Of course, after the panel is presented, we get down to brass tacks. When I was district attorney, I learned how the opposing sides differ in the aim of their challenges in criminal cases. The district attorney wants for jurors men of

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some education and those who own their homes and have steady jobs, because he knows such men favor the enforcement of the law. The other side wants the bums. It works much the same way in personal-injury damage suits. The defendant company wants the same kind of jurors that the district attorney wants, because men like that have some regard for the rights of property; and the lawyer for the plaintiff, the man who says he got his back hurt, wants the bums, because the bums are prejudiced against rich companies and feel a kindred sympathy for the relatively poor plaintiff with a dependent wife and a large bunch of dependent children (his own or borrowed). When we cut a jury, I usually had with me one of my law partners, the chief claim agent, and the assistant claim agent who was handling that case, and as soon as we got the whole jury panel list we would send a copy back to the office so the other boys could look it over and spot the real "stinkers." In district court we had six "peremptory challenges," which means that from the final list of twenty-four men, we could strike off six names without having to give any reason for striking them off—we could just scratch out their names. Naturally, if we had by that time spotted the bums, those were the names we scratched. The other side had a right to scratch six names off the final list of twentyfour, and they would look for the names that meant education or property or both, and those were the names they cut off. I tried a good many cases every year against experienced damage-suit lawyers, and they knew so well what kind of jurors they did not want, and we knew so well what kind of jurors we did not want, that in twenty-five years, in any one case, the same name was never scratched off by both sides. 29

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Our opponents scratched off names, aiming to get the most ignorant, prejudiced, and poverty-stricken jury they could; we scratched off names, aiming to get the most intelligent and the wealthiest jury we could. The glorious middle was the jury. If I had been on the other side I would have done what they did, and vice versa. And I'll bet 100 to 1 that that's the way the lawyers "pick 'em" in personal-injury damage suits in every state in the Union. And after you pick 'em? Well, there is a wise old saying around the courthouse: "You can't ever tell what a jury will do." The truth of it was well illustrated in a bad case we were defending for the S. P. Railroad. The case was serious enough that I had both claim agents and the old special agent, in addition to my law partner, Clem Kennon, to help me pick the jury. The combined experience of my four assistants and myself in picking juries for corporations in damage suits covered 108 years. We left on the jury a man who ran a cheap assignation house (denominated by him, "tourist hotel"). We left on the jury a dirty-looking, fat young slob, who admitted he was the porter in a beer saloon at a location that spoke volumes to anyone wise in the traditions of the town. That shows what hard going we had in the panel. All five of us agreed, backed up by our years of experience, that if we had had two more challenges we would not have hesitated a moment to use them to cut off those two jurors. It was a hard-fought case, and lasted about a week. During the trial the court took a recess from Saturday at noon until Monday morning. The porter in the beer saloon made it back to court on time Monday morning, but he was a 30

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sight to behold. He didn't have on a tie, and his shirt was torn at both shoulders and looked as if he had spilled at least half a bowl of chili down the front of it. He had two swollen black eyes, but that wasn't all. He also had a swollen black nose, a swollen black mouth, and three bad cuts on his face. In my younger days I practiced a good deal of law in the police court, and as district attorney I often visited the county jail and the morgue, but that juror's countenance was the most battered-up countenance I have ever beheld on a man who was still alive, and when I took a look at him I felt pretty sick that we hadn't had just one more challenge. He was the sorriest-looking creature I ever saw in the jury box—or outside of it. After the jury were all in the box, the judge got this juror's name from the clerk and then asked him, "Mr. , are you sick?" "No, sir, Your Honor." "Do you feel well enough to go on with the case?" "Yes, thank you, sir, I feel just fine for Monday morning. "Well, you sure don't look it." "I'm sorry, sir." "All right then, but don't you take another drink until this case is over. Do you understand me?" "Yes, sir, but you didn't have to tell me that, Judge." I was pleased and surprised at the way he answered the judge's questions, and I thought, "He's a smart bum, all right—maybe just temporarily down on his luck." The case lasted several more days, and then we had a hung jury—nine against us and three for us. I followed the jurors into the room where the clerk was making out their

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pay slips, and three of them were standing by themselves over in the corner. The one in the middle was an old schoolteacher. When he saw me he smiled and said, "Well, Mr. Brown, here are the three musketeers who held the fort for you!" and he put his left arm around the shoulders of the man who ran the assignation house and his right arm around the shoulders of the battered-up porter. Let a blind man pick 'em! We settled the case later, but it didn't cost us nearly as much as the plaintiff had demanded before the trial. (Regardless of the fact that it may not seem artistic to most modern writers, I will close this case with an old-time touch by saying that several years later I happened to learn that our battered-up juror had married, become the father of two kids, was working hard on a small, irrigated truck farm out by Kelly Field, and on the side was salesman for some national company that sold insecticide to kill bugs on plants. That just shows you.) People often ask why we don't let the judge decide cases instead of a jury. I don't know how other lawyers answer that question, but my answer is this—judges get in ruts. Judges are usually honest and honorable, but it is very difficult for any man (unless he is a most exceptional character) to decide the same kind of problems year in and year out without developing a leaning in favor of one side against the other, even though he may not realize it. In a jury trial, the judge decides all questions of law and the jury decides all questions of fact. In Texas, unless one side has demanded a jury, cases are tried before the judge without a jury, and the judge then decides all questions of 32

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fact as well as all questions of law. For twenty-five years I knew the individual leanings of the different judges (of those who served for any length of time) so well that if you told me a certain judge was trying a certain kind of case without a jury, nine times out of ten I could guess successfully which side was going to win the case. All of the old regular courthouse lawyers knew these various biases, and the only ones who did not know them were the judges themselves—and maybe sometimes they did, too. Don't misunderstand me. I think we had a fine, honorable, high-class group of judges; but judges are only human beings, after all. And lawyers get in ruts, too. I admit I'm in a deep one. A lawyer for the plaintiff in a personal-injury damage suit would be a plain damn fool if he took me on the jury. (And maybe the bias which is the result of the many years I was on the defendant's side of the table causes some of my comments in the course of this book to be not entirely fair and just.) At the time I was elected district attorney, Billy Anderson, who for about ten years past had been assistant district attorney, was elected judge of the criminal district court. On the first day of the court term the deputy sheriff brought in four very unprepossessing prisoners from the county jail, and at recess the new judge looked worried. "I'm in a bad fix, Clint," he said to me. "I'm supposed to be fair to defendants, and I am supposed to presume that they are innocent until they are proven guilty—but I've been on your side of the table so long that when the deputy brought in that string of pale-faced, shifty-eyed S. O. B.'s this morning, I just knew that every damn one of them was guilty as hell."

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But he got over it and served with distinction for many years, becoming known as one of the kindest, most beloved district judges we ever had on the bench. Individual members of a jury can be biased, and usually are, for it isn't human nature not to be. But there are twelve of them, remember, and the biases get well scrambled up, and the result is a pretty fair look at the facts and the merit of a case. A newspaper story about bribery of jurors always makes big headlines, but I encountered very few instances of such a thing. My companies and my claim agents did not try to bribe juries. In one case I handled soon after I started with the firm, an ambulance chaser, who was a newcomer in the racket and thought he was doing the wise and usual thing, tried to bribe a juror. We shot our whole load, raised so much hell, and tried so hard to send that lawyer to the penitentiary that no one ever tried it on us again, as far as we ever knew. I fought the ambulance chasers for twenty-five years as hard as anybody in the state—and what some of them will do to get money from the corporations is a dirty, stinking shame—but I will say that as far as I know (and with able help I knew a good deal) no other one of them tried to bribe juries in my cases. And jury bribery in general does not often happen in ordinary civil cases. The main (if any) danger of it is in a criminal case, when a defendant has money available and the penalty is heavy. Since I've mentioned ambulance chasers (of whom I gave my definition a while back), I'll digress here a little to say more about them. I never did see any statistics on the subject, but my rough estimate is that during my active time in the courthouse aboutfiveper cent of all the lawyers in town 34

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got about ninety per cent of all the personal-injury cases because they solicited the business, contrary to legal ethics. To put it mildly, a good many among that five per cent, although they may not actually have taken in behind every ambulance that sireened down the street, deserve to be put in the classification of ambulance chasers. Some of them did their chasing by reading the papers and then sending out "boosters" to contact the injured party or his kinfolks, some had boosters at the sheriff's office, at the police station, and at the hospitals, and I am sure there are many other twists to the racket that I never heard of. Now I am not saying that all lawyers who represent the plaintiff in personal-injury damage suits are ambulance chasers. Many of my opponents were high-class, honorable men, fine gentlemen and skilled trial lawyers. Such men get the business, not by the racketeering methods mentioned above, but because of the reputation they have built up for getting high verdicts and because of their skill as trial lawyers. I have only praise for these men, although I sure did hate to go up against them in the courthouse, because throughout the years they beat me a good deal of the time. They hand-picked, just as we did, the cases they decided not to settle but to try. It was anybody's guess, and we had lots of fine scraps lasting three to ten days, rough and tumble, no holds barred, lots of satisfactory hung juries, lots of glorious victories—and too many uncomfortable defeats. But when I recall the beatings, it is somewhat consoling to my vanity to recall also that on their side of the table sat a skillful trial lawyer with a wounded, sympathy-provoking individual plus probably a wife and kids, and on my side there was a claim agent and a rich, invisible corporation. And always in the box was a jury of twelve ordinary

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human beings, watching and listening to both sides, with all the natural feelings that human beings are heir to. Sometimes I'd say God bless those twelve!—and sometimes I'd say the other thing.

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Dr. Brinkley and the Million-Dollar Goats One of the finest scraps (and one of my few noncorporation cases) was the Brinkley trial. Dr. John R. Brinkley was the famous goat gland specialist. He advertised that he could graft a slice of the glands of a healthy young billy goat into the parts of a man's anatomy where they were needed, and restore, or improve, his manhood. Dr. Morris Fishbein, in the American Medical Association's magazine Hygeia, of which he was editor, had called Dr. Brinkley a quack. In the Federal Court at Del Rio, Texas, Brinkley sued Dr. Fishbein for libel, for the sum of $250,000, alleging that the accusation that he was a quack had hurt his practice to such an extent that his receipts in doctor fees had fallen from $1,000,000 a year to a mere $900,000 a year. 37

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The Medical Association and Dr. Fishbein employed me to defend the case. I had helping me two fine lawyers from Chicago, Clement L. Harrell and Don Reynolds, another wonderful young lawyer, Grady Lowrey, of Del Rio, and my brilliant young partner, Wilbur L. Matthews, but I took the lead in the case. Our client, Dr. Fishbein, attended the trial, accompanied by a jovial Irish claim agent. One log we were dragging in the case was that on the other side of the table were only three people—little Dr. Brinkley and his two lawyers, while on our side we had seven people—five lawyers, our client, and a claim agent. But we had a jury that was particularly appropriate. Del Rio is one of the centers of the goat-ranching business. On the jury were several of the town's businessmen, but the majority of the jurors were ranchmen, who knew the proclivities of a billy goat as well as anybody in the world. Dr. Brinkley had started his goat gland business in Milford, Kansas (described by Dr. Fishbein as "just a wide place in the road" when Brinkley came to it); he conducted his own hospital, where he and other men on his staff did this operation and other operations—many of them concerned with sexual potency—and he bought himself a radio station, from which he broadcast advertising for his hospital and also prescribed for patients whom he had never seen but who had written their symptoms to him. In the course of a few years, spurred on by the American Medical Association, the Federal Communications Commission got interested in the doctor's activities, and when he applied for renewal of the radio license the FCC refused to renew it. The State of Kansas also revoked his license to practice medicine in that state. And he was so angry about it, and had enough followers who thought he had been mistreated,

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that he decided to show the whole bunch of his enemies a thing or two: he ran for governor of Kansas and came mighty close to being elected. He always claimed that he really was elected, but that the politicians out-counted him. He even got 20,000 votes from Oklahoma! As he could not get another radio license within the United States, he put up a station in Mexico just across the Rio Grande from Del Rio, Texas, and established his new home and hospital in Del Rio. Later he moved the hospital to Little Rock, Arkansas (and started a second one there), but he kept his residence in Del Rio and the radio station across the border. The station was one of the most powerful ones on this continent, and the glad tidings of his rejuvenating discovery were lapped up by worried but hopeful members of the male sex all over the United States, and from Alaska to Argentina. The courtroom had about a hundred seats for spectators. The judge would not allow anyone to remain standing, and a special deputy U. S. marshal was always stationed at the spectators' door from the hall. As soon as one seat was vacated, he would admit another spectator. Admission was free. For the whole ten days every seat was occupied, and more spectators always stood in the hall (in a long line as in front of a movie) than were sitting down inside. And about eight out of ten of them were women, but, to put it mildly, maybe that was because the menfolks had to work. My law partner Wilbur Matthews investigated most of the important law points in the case, and one very important point of evidence was this: would the judge allow the attorneys for the plaintiff to put an old man on the stand to swear that Brinkley had operated on him, sewed up some billy goat glands inside of him, and made a young man out

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of him; and, to meet this proof, would the judge allow us to put on the stand an old man who would swear that Brinkley had charged him a big fee, cut him all to pieces, and ruined him for life? After an investigation of the law, Wilbur Matthews came to the conclusion that none of the testimony of individual patients would be admissible; it is a general rule of evidence that only a qualified expert in possession of the pertinent facts can express an opinion which is admissible as evidence, and so if a patient of Brinkley's, say, were to testify that the operation in Brinkley's hospital "cured" him of his trouble, the judge would be pretty sure to rule that this amounted to the witness's diagnosing his case and expressing a medical opinion (which only a "qualified expert" was supposed to express) that the operation was the cause of his alleged cure. And so we did not round up any disgruntled patients to use as witnesses. But our opponents must have thought that the judge would admit such proof, because, after the jury had been selected and were in the box, when all of the witnesses stood up in court to be sworn and instructed, some twenty old men were in line, and one of them did a couple of steps of the Highland fling, and they were the friskiest bunch of old roosters you ever saw in your life. So we knew what to expect. And sure enough, later on in the trial, one of the old men popped up. After being called, he crossed the courtroom with a jaunty stride, and, as he turned to sit down, he "cut a pigeonwing" with his right foot. We let him get started, and then I objected, stating the reasons for the objection. The jury was excused, and after a conference with lawyers of both sides, the judge ruled that such testimony was not 40

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admissible. There was a short recess after that, and I went out into the hall. That witness was telling the other old men about the ruling the judge had made, and then the whole bunch of them went down the steps together, some with heads bowed, and all walking as if they were going to a funeral. My recollection is that we had four doctors who testified as expert witnesses and the plaintiff had six. Each expert seemed to have his own chart or picture showing the usually censored parts of the male anatomy; before we got through, all of the blackboards and a good part of one wall were covered with the charts and pictures, and for the biggest part of ten days I heard described in minute detail, and in precise technical language, all of the many possible formations and malformations and functions of the various parts and subdivisions of such anatomy. Discussion of the law and the jury speeches took up one and a half days; Dr. Brinkley's testimony took up two days; the week end took one and a half days; and the experts took up the rest of the time. And the upshot was just about what it always is when experts are testifying: the sum-total of our side's testimony was that the goat gland idea was perfectly ridiculous and could have absolutely no effect on a human being; the sum-total of theirs, that the operation was a wonderful success. Our experts did say that if the goat glands were thoroughly sterilized they would do no harm. They would be like any other clean, foreign substance that got into the body, but they would not live, and would absolutely not join the nerve structure and blood stream or become part of the reproductive organs of the patient. And we had a chemical expert who told about analyzing 41

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one of Brinkley's prescriptions—old 1020. (In the days when Brinkley prescribed by radio, medicines were specified by number, and the patients were told to go to suchand-such drugstore in their own towns and ask for that number. There was a regular chain of the drugstores, and the druggists got part of the profit, and Brinkley the rest.) This 1020 was injected into the patient when he'd had the prostate operation, and maybe he took some home with him; our expert figured that one of the little ampoules of it cost about eighteen cents to produce, being composed mostly of water and coloring matter—and, though the amount might vary, the Brinkley Hospital realized about a hundred dollars on the use of six of them. On the appeal of the case to the United States Circuit Court of Appeals, Fifth District, at New Orleans, being Case No. 9230, the Transcript of Record is two big printed volumes, a total of 1164 pages. I will quote from it briefly. The testimony, as printed, is mostly in narrative form, not verbatim question and answer. Dr. Brinkley testified at great length, on both direct and cross-examination. Parts of his testimony follow: Yes, I think I recommended the implantation of goat, sheep, monkey glands, as an aid to sexual weakness. Very likely I did that in thousands of pieces of literature I put out up to the time I started broadcasting in 1929. As to whether it is a fact I did, I mailed out a lot of literature advertising this gland work I was doing, running into thousands of pieces of literature. The first man I operated on was forty-five years of age, and I think the second man I operated on was about thirty-

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eight years of age. They were troubled with loss of sexual power. The effect which the goat gland operation had on them was they claimed complete restoration of their sexual powers. Then I operated on two people kind of having trouble with their minds. .'. . You say I had two farmers and then two that were troubled in the mind, and was the fifth one a man around Milford, when they were kind of laughing about the operation. Oh, I know who you mean, old Charley Tasine. The boys in the barber shop were kidding Charley, whether he would have an operation or not, and he said he would if he had the money, he would have an operation, and I was coming along, and I said, "You don't have to have any money, come up to the hospital, and I will give it to you for nothing," and I gave it to him. I took him up and the operation was entirely successful. He was a bachelor and he got married right afterwards, anyway. As to whether the book said on page 101 that "the man to whom Doc had done this had become a regular billy goat, twice as good as any other man around Milford," that is what he claimed. He was one of these boasting fellows, like to blow off as to his ability. About that time I owed some money on my hospital. Concerning whether I hired a publicity agent to come down there and help me advertise it, I hired a man that had had experience in advertising to come down there and advise me if there was anything I could do to increase my business. He asked me "Well, you are fust a country doctor here away out in the country. What has happened here unusual, what has been done here that we can advertise," he asked me about that. Finally after my studying around about it I told him about these operations—/ don't remember whether I

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had seven at that time—/ had performed with the goat gland operation, and I told this advertising man finally, "As far as doing anything different, I will tell you, I have done this goat gland operation" With reference to whether he didn't reach over and grab me by the hand and say, "Well, we have them, it is worth a million dollars," he said: "Dr. Brinkley, you have something that is worth a million dollars to you." The gross income of myself and my wife for the year 1938, from all sources, I can't give you the exact figures because my auditors make it out, is around $810,000.00 gross. If I remember correctly, my gross income for 1937 was pretty close to eleven hundred thousand, right at $1,000,000.00 gross. With reference to whether I claim that that little testicle of a young goat lived and grew after I implanted it in a human testicle, some of them seemed to grow and enlarge and others, the majority of them, went through a process of absorption, they were gradually absorbed. . . . / don't mean to say that the little thing lived and was fust like a part of the human testicle, and it was living in there after I put it in there. I don't conceive of it that way, I don't conceive of it as being a part of the human testicle. As to why it wouldn't fust get rotten in there, if it became infected it would, it would spoil. Dr. Brinkley had published a biography of himself, titled Life of a Man, written by some man named Wood, and the book had been sent out as part of his propaganda come-on.

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I got hold of a copy of it; it was interesting reading, to say the least, if you had a strong stomach, and it was useful to me in my cross-examination. Following are a few excerpts of Brinkley's testimony in response to questions about what was written in the book. Probably this book published in 1937, on page 301, probably I claimed it [his new general surgical technique] greatly increases the sexual powers of men and women. I think I said in the book that it overcame depressed mental conditions, yes, sir. It is true that I say in the book, "He has, as a matter of cold sober fact, changed the color of his patients hair, smoothed the wrinkles out of their faces, and turned their complexions from a sickly pallor of old age and disease back to the ruddy glow of health." As to whether it says in the book on page 310, quoting the "splendid words of Sidney Lanier: What possible claim can contemporary criticism set up to respect—that criticism which crucified Jesus Christ, stoned Stephen, hooted Paul for a madman, tried Luther for a criminal, tortured Galileo, bound Columbus in chains, drove Dante into the hell of exile . . . and committed so many other impious follies and stupidities that a thousand letters like this could not suffice even to catalog them?' Of their company is John R. Brinkley," probably that is in my book on page 310. Advertisements, letters to patients, and scripts used on the old and new radio stations were entered as exhibits. You had to grant the doctor one thing—he certainly wasn't afraid to pile it on. The statement following was part of one advertisement.

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A man's prostate is analogous to a woman's womb, and begins to undergo a change in form and function somewhat around the age of 40 to 50, fust as a woman undergoes a "change of life" I expect you have not been told this, but I am sure you will appreciate the reasonableness of it when called to your attention. You know women have many symptoms indicating their change of life, and with many women it is a "stormy" time. A great many women have what we call menopausal high blood pressure. The blood pressure seems to increase as the ovarian function decreases. This abrupt break in the health of a woman calls her condition sharply to the attention of the family, but it is not so with man. Men have not been taught to think along these lines, and I am sure to many of my readers, this will be surprising information. However, I assure you that a man undergoes a "change of life" just as truly as a woman does, and the man's change is reflected in his prostate gland, while the woman's is principally in her ovaries. That was news to me. Exhibit No. 36 was one of the ads called "Brinkley-OGrams." It had a picture of Dr. Brinkley with one foot on the running board of a shiny new-model automobile, the caption of the picture reading in part, "which he personally is going to give away." In the text of the ad you were told: Prostate Sufferers Everywhere: For a limited time I will personally give to one patient in every ten who has paid the operating fee of $1,119.00 to the Brinkley Hospital a modern 1938 Oldsmobile automobile

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stop the only requirement is that each patient must write a letter of praise or condemnation of our work to be used by me to advertise and tell other sufferers about the modern medical and surgical service of the Brinkley Hospital stop . . . if you are suffering from a diseased prostate let the Brinkley Hospital start you on the road to health and happiness stop do not delay. He made springtime work for him, too. One letter to a prospect ran this way: My Dear Friend: A redbird and his mate are building their nest fust outside my bedroom window; the turtle doves are nesting in the cedars south and west of the hospital. The robins have theirs in the stately elms surrounding the main building. The Peonies are almost in bloom, the Iris, Tulips, Japanese Lilies, Jonquils, and Hyacinths are out in all their glory. It is springtime in Kansas—May, the loveliest of our months. Will you, for your healths sake, be with us this May? Cordially, John R. Brinkley In one of the broadcasts from the radio station in Milford, before it was compelled to shut down and move to Mexico, the first goat gland operation was described. In the fall of 1917 he was afforded his first opportunity for testing in actual practice the theory he had evolved— that sex glands were the source of all nerve energy . . . and

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that the glands of a young, healthy goat, implanted in a human being, would function. . . . Eminent surgeons had said it simply couldn't be done. But Dr. Brinkley performed the transplantation successfully, and the baby boy born some ten months later, as a direct result of the operation, is today a lusty youngster who bears the appropriate nickname of