By James Muelhberger
Reviewed by Dennis Bianchi
Like the Whitey Bulger book, this is the story of well-known criminals, albeit of a different era. It is also a well-written and highly annotated historical explanation of how, on occasion, Americans will unreasonably become enamored with criminals and their behavior. It is also a valuable lesson for us today, as we read our newspaper accounts of events, to be wary of what is written without confirmation. It is also an example of what a tenacious smart lawyer can do when motivated. James Muelhberger is just that, a Kansas City Missouri defense attorney who wouldn't quit.
For many years Mr. Muelhberger had heard tales of a brave young lawyer who had filed a civil suit against Jesse James on behalf of a farmer who had his horse stolen by two men, believed to be the James brothers, Jesse and Frank.
The story is simple, but strange. On Dec. 7, 1869, Jesse James killed a clerk at the Daviess County Savings Association in Gallatin, Missouri. As the brothers made their getaway, Jesse James got thrown from his horse and dragged in the stirrup. The outlaw untangled himself and jumped onto the horse his brother was riding, abandoning his mount just outside Gallatin, the county seat.
While fleeing they came across Daniel Smoote, a farmer who happened to be riding his own horse. Jesse James demanded the use of Smoote’s horse at gunpoint. What happened next was highly unusual: Mr. Smoote, with the aid of his lawyer, Henry McDougal, filed a civil lawsuit against the brothers in Daviess County, seeking full value of the horse, saddle and bridle the James brothers had taken. The brothers, at first, responded in kind: They hired Samuel Richardson, one of Missouri’s most successful lawyers. He argued that neither brother was personally served notice, in spite of the Clay County sheriff saying he delivered the papers to the James family farm. The case was dismissed. Offended by the implications, Jesse James proclaimed himself innocent of the Gallatin holdup and murder in a letter to the Kansas City Times, a paper founded to support the Confederate cause. While he admitted that the horse left behind at the Daviess County Savings Association, a beautiful and fast Kentucky thoroughbred, had once belonged to him, James claimed that he had sold it sometime before the robbery to “some Kansas Jayhawkers,” a slang term for local Civil War-era antislavery guerrillas. If he could be assured a fair trial on the killing, he wrote, he would gladly appear for one.
The lawyer, Henry McDougal had another idea. He petitioned the court to file notice of service in the classified section of another newspaper, the Gallatin Weekly Democrat.
“I think he thought, ‘If you (Jesse James) want to try this in the paper, I’m going to serve you in the paper, because apparently you’re reading it,’ ” Mr. Muehlberger stated of lawyer McDougal. Richardson filed another motion to dismiss, claiming that the James brothers weren’t in Gallatin when the notice was published. But at the next hearing Richardson announced that Frank and Jesse James had authorized him to withdraw their answer, and allow a judgment to be entered against them.
The court awarded Smoote $223, which amounted to the value of the property the James brothers had taken. To collect the judgment Mr. Smoote took possession of the horse James left behind at the robbery. In my mind, Smoote was handsomely rewarded. But lawyer McDougal, by his courage and cleverness in pursuing the James brothers made himself and the James brothers public figures. Up to that point, all three men were known primarily only to the folks living in the area and those involved in the lawsuit. McDougal was only 25-years old when he took this case and had only been in practice 13 months. Later, McDougal discovered that every other lawyer in Gallatin refused to file the lawsuit. The brothers had a reputation for violence and murder, gangsters of their times, and more than once Jesse James tried to have McDougal killed, Muehlberger says, but the gunman missed. McDougal was aided frequently by Pinkerton detectives and the political influence of the governor of the State of Missouri, Hamilton Gamble.
The author believes that the murder of the bank clerk was not a bank robbery gone bad but Jesse James trying to avenge the death of his Confederate guerilla boss, "Bloody" Bill Anderson. The crime was a failure in all respects. James shot the wrong man, John Sheets, who closely resembled Samuel P. Cox, the man who had killed "Bloody" Bill Anderson. Jesse was never arrested for this or any other crime.
Smoot's lawyer, McDougal was rewarded for the risks he took. He was elected mayor of Gallatin a few months after he won Smoote’s case. He served two terms, and then was elected as a probate judge. McDougal was also appointed as a special prosecutor in a criminal case against Frank James for robbery and murder, filed more than a decade after the Smoote lawsuit.
According to Mr. Muelhberger, John Newman Edwards, a former Confederate soldier who founded the above mentioned Kansas City Times, played a significant role in giving the James brothers a positive spin. Edwards started the paper with the intent of returning power to Missouri’s Confederates, and he often wrote about Jesse James in heroic terms. The author believes several letters that were published under the name of Jesse James were, in fact, written by Mr. Edwards. But Mr. Edwards was not alone in perpetuating the myth of the James brothers and the James-Younger gangs of that era. The title lead, The Lost Cause, refers to the idea that many Southerners never gave up the idea of the Confederacy and continued to fight Union ideas and practices. The author writes, "After the war, some white Southerners began to spin grand, romantic fables of the Lost Cause that had been fought for states' rights or constitutional principles, or any other reason they could conjure as long as it was not slavery." The author makes a very convincing argument that the James brothers were first and foremost gangsters, or as he titled a chapter in the book, "Ravenous Monsters of Society." They robbed banks and trains not to re-distribute the money among the poor but to pay off their gambling debts, buy younger and faster horses and live in luxury. Jesse, however, was killed at the age of 34 and most all of the gang were dead or in prison within a few years of Jesse's death. The exception was Jesse's brother Frank who gave himself up but did very little jail time. He became known as a horse racing expert, at one point betting $5000 on a 10 to 1 shot at the Kentucky Derby and won. He moved to California where he spent most of his time at race tracks, eventually becoming a starter at some tracks of the era.
The book is highly annotated and provides the reader with a great thumbnail sketch of such historical events as: The Missouri Compromise, The Mormon Wars (near Gallatin, Missouri), the origin of names such as Jay Hawkers or Missouri bushwhackers. The reader learns that the Kansas-Missouri Border War and the Civil War were fought simultaneously, which only added to the lingering harsh feelings and violent actions following the end of the Civil War.
I found this book to be well-written, properly researched and supported with sources but mostly I found it entertaining. I wish more history was represented in a similar fashion.
