“No violation of any law of either God or me.”

May 11, 2017 § Leave a comment

This little story comes from my unpublished (and likely to stay that way) biography of Ben Thompson in Austin, and comes in response to a thread on Facebook today (May 11, 2017) about the present Texas Capitol and the limestone quarry at Oak Hill’s “Convict Hill.” The capitol was to have been built with Convict Hill limestone, but the rust stains resulting from the iron pyrite nodules that riddled the stone rendered it unfit for exterior use, prompting the use of the beautiful pink granite from Marble Falls.

On February 22, 1884, there was a kind of picnic out at Oatmanville (present-day Oak Hill), seven miles from Austin. The syndicate that was building the new Texas capitol had its rock quarries at Oatmanville, and the leading citizens, including Governor Ireland and other state officials, were invited out to look at the work. There were about 130 persons present.

While the picnic was in progress, who should drive up but prominent gambler and former city marshal Ben Thompson, in a handsome carriage drawn by a fiery team of horses. On his right was Colonel Bingham Trigg, Ben’s attorney and ex-city attorney. In the back seat sat Mr. C. D. Johns, the recorder of the City of Austin, by whom Ben had frequently been tried. The fourth gentleman was Ben’s long-time friend and defense attorney, George Pendexter, who was now Austin City Attorney, chief prosecutor of violators of the law. The appearance of this strangely assorted quartet on the grounds created some little sensation. For a time, they mingled with the other excursionists and partook of the cakes, oranges, cigars, etc., provided by the generous agents of the capitol contractors.

Sauntering up to Governor Ireland, Ben excused himself for not having come out sooner. “I was detained by my friend, the Recorder here, who fined me ten dollars for some fun I had yesterday; but, as your Excellency will perceive, I am fixed now. I’ve got the Court, and the Prosecuting Attorney, and my own counsel, and the corpus delicti, which is me, all in the same vehicle. If I commit any illegal indiscretion, we stop the carriage right in the road, and try the case then and there. I pay my fine, if my attorney can’t persuade the Court that I’m innocent, and then we drive on until I commit a fresh indiscretion.”

Governor Ireland smiled, and made some bantering reply, after which Ben and his friends resumed their places in the vehicle. Off they went at a breakneck speed, headed back to the capital city along the winding path from Oatmanville, amid the solitudes of a Texas cedar brake, Thompson driving the horses with one hand, while he plugged the trees with the revolver in his other hand. Recorder Johns joined in the fun as well, fairly matching Ben shot for shot, it is said.

But the eagle eye and acute ear of Travis County Deputy Sheriff Pace, whom Johns had fined $100 and costs (the maximum allowed by law) a few weeks earlier for discharging a pistol within the Austin city limits, were open. Pace happened to live in the township of Oatmanville, and when the rattle of the volleys awakened the echoes in the glens, he hastened thither and beheld the city recorder of Austin shooting his gun “on and across a public highway” in the State of Texas, which was a misdemeanor. No matter if the road be the poorest of paths, the law protected the poor as well as the fat. “Strictly in the line of his duty,” the Statesman remarked, tongue firmly planted in cheek, Deputy Pace caused information to be filed against Recorder Johns on two charges: one for carrying a pistol and the other for shooting “on and across a public highway.”

The charges were filed before Justice of the Peace D.C. Pace, one of the deputy’s brothers. Turnabout was indeed fair play in this matter, and as Deputy Pace had been before him, Recorder Johns was in it for all it cost, to get out of the meshes of wisdom surrounding a court of justice.

As it turns out, the cases against Johns were dismissed by the Travis County Attorney on March 3, on grounds that the facts didn’t constitute a violation of any state statute, or as Johns put it, “No violation of any law of either God or me.”

Officer William Howe made complaint on the evening of February 23 against Ben, charging him with shooting a pistol in his presence. Ben was not arrested, and afterwards rode around Austin in a buggy, firing his pistol off several times, just as he had done on the day he returned in his buggy from Oatmanville. This might have been very interesting for Ben, but it was certainly not amusing to the people whose lives were endangered by so much promiscuous shooting.

That night, Ben borrowed a hand organ from an Italian name of Michlo Penilo and went to several places about the city serenading his friends. When he took it back, Penilo said it was broken. Ben politely told him it was not, and requested the mendicant to “grind it,” which he did not seem inclined to do. Ben gave Penilo to understand he had to grind. Then Ben told him it had too much wind anyway and proceeded to shoot it out. After Ben had fired several shots at it, its usefulness as a hand organ was at an end. Ben was promptly arrested by Officer Callahan, and the next day he pleaded guilty and paid his fine, $10 dollars and costs, and also paid Penilo for his music box.

Penilo moved to San Antonio shortly thereafter, where he took up residence with his sister, Ignaciano. Fighting the world together, saving, scraping and denying themselves everything or anything which was in any way expensive, thus by degrees a sum of money was accumulated in one of the San Antonio banks to the amount of about $400, but over the half of which belonged to Ignaciano. Both seemed inordinately affectionate and doing all in their power for each other’s interests.

The sister’s show of love to her brother seems to have been sincere, but the brother’s was evidently a snare whereby to gain the sister’s confidence, and to have the whole power of managing the money in his hands. How this power was abused the unfortunate sister came to know when Michlo, drawing the whole sum from the bank, almost two months to the day after Ben deprived him of his livelihood, decamped for parts unknown, leaving her almost penniless.

On February 27, 1884, the Statesman noted, “Ben Thompson had a happy time late Saturday night and Sunday morning. He must have been omnipresent, for there is hardly a locality in the city that does not lay claim to be honored by the ‘whang’ of his gun. His young companions, too, are getting more glory than they like, it is surmised.”

Theodore Hillyer, one of the young men who was with Ben that Saturday night and Sunday morning, was charged before the recorder with discharging a pistol within the limits of the city. A similar charge was also filed against Ben. But the case against Hillyer for having a pistol was dismissed because he was a deputy sheriff, and thus permitted to carry arms.

Ben could have cared less; after he paid off Penilo the organ grinder he left town on the 6 p.m. Houston and Texas Central train. February 26 was Mardi Gras day, and King Dionysus in Galveston was beckoning. Ben changed trains at Houston and took the Texas and New Orleans to Galveston, arriving at 9 on the morning of the 25th.With all the festivities and the prevailing royal atmosphere that so appealed to Ben’s British roots, Mardi Gras was Ben’s favorite holiday, apart from Christmas with his family.

 

 

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