SOME IMPORTANT LAW SUITS
It is not within the scope or purpose of this writing to enter into or
discuss the merits of the various suits in which I was employed. I
cannot, however, give any idea of the fifty years of my life during
which I was engaged in a number of important suits, without reference
to their nature and character, and the management to which I attributed
important results.
In the latter part of the year 1864, whilst in attendance at the
supreme court at Davenport, I was retained by the Chicago &
Northwestern Railroad Company, in company with Mr. Thomas F. Withrow,
to assist the general counsel of that corporation in a suit, then
recently brought in the United States circuit court for the southern
district of Iowa, enjoining the company and its agents and employees
from putting a certain span of their bridge across the Mississippi
river at the town of Clinton, Iowa. Mr. James Grant of Davenport and a
Mr. Lincoln of Cincinnati had been employed by the river interests to
prevent the completion of this bridge on the ground that it would prove
an obstruction to the navigation of the river. Mr. Withrow and myself
spent a day in examining the alleged obstruction to navigation, the
company furnishing us a steamboat in which we passed through the piers
on which the drawbridge was to be placed. We returned to Des Moines
late Saturday evening. The United States circuit court at Des Moines
met the following Monday. On Sunday Mr. Withrow went to his office and
carefully examined the statutes of the United States relating to the
powers of the court in granting injunctions. He sent for me in the
afternoon. On examination we ascertained that the statute of the United
States contained a peculiar provision, not known to the practice in our
state courts. It provided that when an injunction was granted in
vacation by the judge of the district court of the United States, it
should remain in force only until the close of the ensuing term of the
circuit court; that if the injunction was granted by one of the judges
of the supreme court or a judge of the circuit court of the United
States, it should remain in force until it was dissolved by the order
of the court. We immediately opened telegraphic communication with
General Howe, who was then attorney of the Chicago & Northwestern
Railroad Company, and had in charge the defense of the case. He and
Judge Grant, it seems, had been engaged in taking depositions and
procuring evidence with reference to the question of obstruction of the
navigation by the existence of these piers in the river, and both
General Howe and Mr. Grant appeared to be acting upon the hypothesis
that it was necessary for the defense to make a motion and showing for
the dissolution of the injunction. We called the attention of General
Howe to the provisions of the United States statute, and as we were
well acquainted with the peculiarities of Judge Grant we advised that
if we did nothing upon the part of defense at the ensuing term of
court, it was probable that Grant would take no action in the matter
and the injunction would stand dissolved at the close of the term by
operation of law. On examination of the question General Howe agreed
with our conclusions, and we then arranged that he take the train on
Monday morning and come as far as Ames, Iowa, bringing with him all
evidence, depositions, and papers that we might need in case there was
to be any hearing before the court; that General Howe should occupy a
boxcar at Ames and not subject himself to personal observation, whilst
we would take charge of the interests of our client at Des Moines and
do nothing save to let the law take its course, and we would advise
General Howe by telegram if Judge Grant woke up and attempted to obtain
any order of court continuing the injunction. Judge Grant was in
attendance upon the court, and several times inquired after General
Howe, stating that he was expecting him daily. Day after day of the
term passed and nothing was done. Finally, the business of the term
being disposed of, Justice Miller, then justice of the supreme court of
the United States and presiding, announced that if there was no further
business before the court the term would be adjourned. Judge Grant
addressed the court and stated that he had been waiting during the
entire term expecting the appearance of General Howe; that he
understood that Messrs. Nourse and Withrow had been employed in behalf
of the defendants, but no motion had been filed with reference to the
injunction in the case against the bridge company or railroad company,
and he wished to know whether or not we intended to do anything. Mr.
Withrow looked at me and placed upon me the responsibility of replying
to judge Grant's remarks. I said that it was true that Mr. Withrow and
myself had been employed in the case, but only as local counsel and the
only authority we had was to act under the instructions of the general
counsel of the railroad company, General Howe; that we had no authority
or direction to file any motion in the case, and I added very meekly
that if any harm should come to our clients by reason of any neglect in
the matter the responsibility would rest entirely with General Howe and
not with my Brother Withrow and myself. Upon this Judge Grant announced
that he had to go to Washington City upon professional business
immediately upon adjournment of the court, and he would not consent
that any motion would be heard in regard to the injunction matter in
vacation. This closed the event and the court adjourned sine die. As
Judge Miller passed out of the court house down the stairs, Judge Grant
having previously left the room, Mr. Withrow could hardly contain
himself and burst into uproarious laughter and attracted the attention
of Judge Miller, who looked over his shoulder and remarked
good-naturedly that he supposed Judge Grant did not understand us. As
previously arranged, the mechanics engaged in the bridge construction
had carefully prepared their timber and every bolt necessary for the
span that should make up the drawbridge between these two piers. Judge
Grant went his way to Washington, and upon his return to Iowa three
weeks afterwards he found the cars in operation crossing the bridge. He
immediately went to Judge Love, and making the necessary affidavits for
contempt of court, obtained warrants for the arrest of the parties
engaged in constructing the bridge. Without disclosing what our
knowledge and view of the law was upon the subject, the parties at once
gave bond and security for their appearance at the next term of court
to answer the charge of contempt. When the next term of court convened,
Justice Miller and Judge Love presiding, I made the necessary motion to
discharge the defendants upon the ground that the injunction had been
dissolved by operation of law immediately upon the adjournment of the
prior term of court, and there being no injunction in force, the
completion of the bridge did not constitute any contempt of court. The
motion was sustained and the defendants discharged.
Judge Howe and Judge Blodgett of Chicago were so delighted with the
result, that they telegraphed to Chicago for a case of wines and
inviting Judge Grant and Mr. Lincoln of Cincinnati, who represented the
plaintiffs in the case, into our room, we spent a very merry evening
together and all seemed to enjoy the evening save Judge Grant who could
hardly forgive himself for his over-confidence which had resulted
fatally to his clients.
During the evening many excellent anecdotes were indulged in: among
others was one by Judge Blodgett for the benefit of plaintiff's
counsel. He said in the early history of the lawyers who were in the
habit of traveling the circuit in Illinois, they had a gentleman come
among them who would never admit that he had made a mistake. The
attorneys were accustomed to amuse themselves in the evening at the
hotel, and among other amusements they had a game called "kicking the
slipper," which consisted in inducing some green victim to put a
slipper upon one foot and attempt to throw it into the air and kick the
slipper with the other foot before it reached the floor. One evening
they induced the over confident attorney to undertake the experiment,
with the result that he came flat upon the floor in the attempt to kick
the slipper with the other foot. The other lawyers thereupon greeted
him with a hearty round of laughter, but he sprang to his feet and said
to them, "Now, gentlemen, you needn't laugh, you needn't think you
fooled me, for I want you to understand that I had no sooner struck the
floor before I understood that it was a trick." Mr. Lincoln was a
merry, good-natured man and enjoyed this anecdote at his expense very
much, but Judge Grant hardly saw the application of Judge Blodgett's
anecdote.
At the next session of congress the railroad company obtained the
passage of a law constituting the bridge a part of the mail route of
the United States, and the court subsequently dismissed the plaintiff's
case. Thus we were successful in gaining our case by knowing when it
was best to do nothing. The use of the bridge was invaluable to our
clients, and the railroad company sent me a draft for two hundred
dollars as compensation for the short speech I had made advising Judge
Grant in the court that we had no instructions to do anything in the
case, and the responsibility of our failure to do anything, if
injurious to our client, would rest with General Howe, attorney in
chief of the road.
Whilst upon this question of management I will give you an account of
another case of some importance that resulted in our complete success
because we did something that we did not learn out of any of our law
books.
A certain young woman in the last stages of consumption had been turned
out of the house of her near relatives, and compelled to take up her
quarters in a second-class hotel in Des Moines during her last
sickness. She had made a will in which she willed to the Catholic
priest of the city, Father Brazil, a valuable tract of land for the use
and benefit of the Catholic church. After her death her relatives, who
had neglected her shamefully during her sickness, brought suit to
contest the validity of this will upon the ground of undue influence on
the part of Father Brazil, and mental incapacity on the part of the
deceased. Judge Kavanaugh, a young bachelor then about thirty years of
age and a member of the Catholic church, and since then judge of the
court in Chicago, Illinois, had been employed by Father Brazil to
defend the suit, and he subsequently came to me and retained me to
assist him in the trial of the cause. During the sickness of the
deceased she had employed a professional nurse, a young woman about
thirty years of age. We were informed before the trial came on that the
relatives who were contesting the will had been very courteous and kind
and generous toward this young nurse woman, and during the holidays had
made her valuable presents in consideration of her kindness to the
deceased. At the opening of the term I noticed this young woman came
into court, receiving the courtesies and attention of Judge Cole, who
was counsel for the relatives that were contesting the will. She was
rather a handsome woman, evidently intelligent and quick-witted, rather
fond of admiration, and as she was to be the star witness for the other
side of the case, I at once made up my mind that the whole case must
turn upon her testimony. As the deceased had been frequently under the
influence of opiates, administered by the physician for the purpose of
relieving her suffering from time to time, it would be a very easy
matter for a young woman gifted as this one was with facility of
speech, to make the most of the incoherent utterances of the patient
while under the influence of opiates. I foresaw that it would not do to
subject this young woman to a severe cross-examination or say anything
that implied that we doubted her honesty or veracity, and yet something
must be done or we were sure to lose our case. I took my young bachelor
friend, Judge Kavanaugh, to one side and told him wherein we were in
danger, and as he was a member of the same church and was himself an
Irishman, and had no doubt "kissed the Blarney stone," it was
absolutely necessary for him to cultivate the acquaintance of this
witness, even to the very verge of proposing matrimony. I told him I
could easily attend to the law of the case, the cross-examination of
the witnesses, but this witness was outside my jurisdiction. He readily
agreed to undertake the part of the case that I assigned to him. He
accompanied the lady to and fro from her hotel at every adjournment or
sitting in the court, and she evidently was very much pleased with his
attentions. I cautioned him not to talk too much about the case, but
talk of other things that he would find probably more agreeable
subjects of conversation to the witness and to himself. He performed
his part so admirably that when Judge Cole called upon his star witness
she proved a flat failure upon his hands. She said yes in answer to his
questions, that when the deceased was under the influence of her
opiates she was a little flighty, but that amounted to nothing, that
when the influence of the opiate was gone she was perfectly rational
and capable of understanding what she was doing at all other times. The
result was that the jury found a verdict in our favor and the will was
sustained. Judge Given, however, who was a member of the Presbyterian
church, seemed to be disappointed at the result of the suit, and set
aside the verdict and granted the parties a new trial. From this action
of the court we took an appeal to the supreme court, and the supreme
court reversed Judge Given's decision, holding that there was no
evidence that would have justified the jury in finding against the
validity of the will, and they remanded the cause with orders to the
district court to render judgment in our favor. In conversation with
Father Brazil after the case was over we were discussing the probable
reasons that induced Judge Given to set aside the verdict of the jury.
I suggested that perhaps he had been reading Eugene Sue's remarkable
work called _The Wandering Jew_. I asked Father Brazil if he had
ever read that book. He smiled pleasantly and said yes, and when I
expressed my surprise that he should indulge in such literature, he
remarked very calmly that he always thought best to know what the world
was saying about his church and people.
I will give here also next an account of the most important criminal
case I ever defended. A man by the name of Yard had shot and killed a
party by the name of Jones. He claimed that he pointed a shotgun over
the shoulder of his wife at the time Jones was approaching his wife
about to commit an assault upon her for an illegal purpose, when he
fired the gun and Jones fell dead as a result. Jones had come onto the
premises where Yard and his wife resided, having in each hand a bucket
with which he was supposed to be intending to go to a well for water.
The buckets were found some distance, probably twenty-five or thirty
steps from the door, and the prosecution claimed that the buckets
indicated the place at which the deceased was at the time he was fired
upon and killed. Yard and his wife were both in jail at the time I was
sent for, and the first thing I did was to enjoin upon them the
necessity of absolute silence and refusal to answer any questions or to
communicate with any party or parties who might possibly thereafter
testify against them. Upon a preliminary trial before the justice I
waived an examination of the case and had the defendants enter bail for
their appearance at court. A man by the name of Smith, who was the
owner of the gun with which the deceased was shot and who had loaned it
to Yard only a few days before, was indicted with Yard and his wife as
accessory to the crime. As the defense in this case would depend
entirely upon the testimony of Yard and his wife I at once appreciated
the absolute importance of having these parties tell the exact truth
without equivocation or invention. My experience as a lawyer had taught
me that persons deeply interested in the result of the trial,
participating in a transaction such as the killing of another, are
subject to such a state of nervous excitement that they frequently do
not remember with any degree of accuracy the collateral facts and
circumstances attending the more important events, and persons of
ordinary intellect imagine it is important that they should be able to
recollect and answer accurately every question that is made in regard
to the collateral facts and circumstances attending the principal
event, and almost invariably they invent answers to such questions and
pretend to know what really they do not know and do not recollect. The
result is that they involve themselves in contradictions and
impossibilities, and let confusion destroy even the reliable and
truthful parts of their evidence, and this was what I feared in this
case. I was accused by some members of the bar and outsiders of
training these parties as witnesses in their own behalf, and in one
sense of the word it was true, but I only trained them to tell the
truth, carefully eliminating from their story and had them eliminate
everything that I was satisfied upon thorough examination was the
result of their invention instead of their recollection. I first
examined each of the parties separately and took down their statements
carefully, and after comparing them tried to make up my mind as to what
was absolutely true and as to what part of their story was invention. I
then brought the parties together and discussed with them such parts of
their story as I was satisfied had been supplied by them and had them
admit and concede that they did not distinctly recollect the matter as
stated. I repeated this process the third time. In some manners the man
and his wife differed as to their recollections as to some things that
had happened, and when I was satisfied that the difference was honest I
made no effort to correct or to reconcile their statements, for my
experience also taught me that absolute coincidence in every particular
of their statements would tend rather to discredit than to confirm the
truth of what they related. Another difficulty in the trial of the case
was the excitable temperament of Mrs. Yard, and what I feared most was
that the prosecutor by severe cross-examination might make her angry
and she would display some temper and make some statement that would
injure her case. When she was upon the stand under cross-examination by
Judge Given, who was then the prosecuting attorney, I kept my eye upon
the woman carefully. She was under examination at least three hours,
and only once did the prosecutor succeed in exciting her so that she
developed any passion. He said to her in a very abrupt and preëmptory
manner, "Now please turn and face that jury and tell them that you
removed those buckets from the doorstep to the place where they were
found." As she turned in a passion to face the jury, flushed with
excitement, I was fortunate enough in catching her eye and fixing her
attention a moment, when her passion subsided, and in a very calm
lady-like way she said, "Gentlemen, I did remove those buckets from the
doorstep and place them out in the yard just as I have heretofore
related." She said this in such a calm lady-like way that I was
satisfied we had gained our case. I proved, of course, the bad
character of the deceased and that he was a bad and dangerous man, and
also the good character and reputation of the husband, which indeed had
been and was unimpeachable up to that time. I examined in this case
over seventy witnesses in behalf of the defense. The jury retired and
were only out an hour or less, when they returned a verdict of not
guilty.
In the latter part of the administration of Cyrus Carpenter as Governor
of the state, the State Treasurer was also treasurer of the Board of
Trustees of the Agricultural College. The two offices had no legal
connection, and it was merely an incident that the same man had been
elected to both positions--the one by the people of the state, and the
other by the Board of Trustees of the college. The Trustees of the
college in making their annual report to the legislature reported that
their treasurer had proved a defaulter to the sum of about $27,000, and
that they had, in order to secure the college, taken from him deeds for
all his real estate including his homestead--all of the property save
his homestead having, as they understood, been purchased by their
treasurer with funds belonging to the college. About nine o'clock one
evening I received a visit from the deputy treasurer of state who
informed me that the legislature, then in session, had passed a joint
resolution, appointing a committee for the purpose of investigating the
question as to what funds of the Agricultural College had been used,
and also as to the proper administration of the funds belonging to the
state in the state treasury; that the Treasurer of State and of the
Agricultural College, being the same person, was about to be examined
the next day by this committee of investigation, and upon advice of his
friends he wished to employ counsel, and wished that I would act as his
counsel in the matter, and particularly the deputy wished me that night
to go with him and have a consultation with the treasurer. I
accordingly accompanied him to the house of the party. I found him to
be an old man probably between sixty and seventy years of age, white
hair and beard, blue eyes, a fine stalwart frame, but laboring under
intense excitement. I listened carefully to his story, in which the
deputy frequently interpolated or supplemented the statements. The care
with which both parties persisted that the funds were not state funds,
but it was only the funds of the Agricultural College that had been
wrongfully used or appropriated, made me fear that neither the
principal nor his deputy were telling me all that they knew. I felt as
Shakespeare says in one of his plays, "Methinks the person doth protest
too much." We were standing in front of the fireplace and the light of
the fire threw a peculiarly bright light upon the countenance of the
treasurer, and the deputy remarked, "Now you understand these funds
were in the hands of the treasurer of the Agricultural College, and
that he did not use the state funds. If he was defaulter as Treasurer
of State he could be punished by imprisonment in the penitentiary, but
if he was only defaulter as treasurer of the Agricultural College that
would be a different affair. Is it not so?" The State Treasurer was
eyeing me very earnestly and watching carefully for my answer to the
deputy's question. My answer was that I was not prepared to say that
that was true, and the State Treasurer turned still paler and more
nervous because my answer was not satisfactory. My conference lasted
until after midnight. I returned home feeling very anxious for the old
man, but still satisfied in my own mind that I had not heard the entire
truth. The next day the committee of investigation, consisting of
members of the house and senate, convened, and I was present when the
State Treasurer was examined by them. The story was told very much as
it was told to me the night before, some questions of a general nature
were asked, but nobody seemed to understand the importance of knowing
when and what particular fund had come into the hands of the treasurer
as custodian of the funds of the college, or when or what particular
amounts had been used or confiscated by him. The committee adjourned
until next morning. That afternoon the house of representatives had
passed a joint resolution requesting the Attorney General to give an
opinion as to whether or not a defalcation by the treasurer of the
Agricultural College funds constituted a crime, and also instructed him
that in case it constituted an offense he should at once commence a
prosecution against the party in question. Fortunately, this action of
the house of representatives offered me a good excuse or pretext at
least, to have the treasurer refuse to answer any further questions by
the investigating committee, and we accordingly withdrew him from the
witness stand. Within the next day or two the deputy came to me and
showed me a lot of memoranda made on slips of paper in his handwriting,
containing certain figures, the aggregate of which amounted to the sum
for which it was claimed the treasurer of the Agricultural College
funds was in default. The deputy advised me that these slips had been
kept in the state treasury vault and had been counted as cash items
from time to time. Within a few days after that I had an interview with
Dr. Welch, the president of the Agricultural College, and he stated to
me that he was not satisfied that the funds that had been used by the
treasurer were Agricultural College funds at all, and that the loss was
saddled onto the college very much to the embarrassment of that
institution, as they now had to wait for their money until such time as
the property which had been turned over to the trustees could be turned
into cash. He said he had a letter in his possession written by the
deputy stating that the treasurer was away from home at that date and
that he had not drawn the $30,000 theretofore appropriated by the
legislature for the benefit of the college, but that the treasurer
would return in a short time and that he would advise the president on
his return. At my request the president furnished me this letter and
its date, and I found upon comparing it with the date of the warrant
drawn in favor of the treasurer of the Agricultural College for the
$30,000 and the cancellation of that warrant; that is, when it was
marked paid, that there was a wonderful correspondence between the date
of the letter and the date when the warrant was marked paid. The
deputy, at my request, had given me these slips of paper containing
this memoranda and I had carefully locked them away in my iron safe,
thinking that possibly they might be of future use. At the next term of
the district court of Polk county the grand jury found two indictments
against the State Treasurer, one as defaulter to the state of Iowa as
Treasurer of State, and the other as defaulter to the State
Agricultural College, but examining the minutes of the grand jury, I
found that there was no evidence whatever before the grand jury that
the State Treasurer had used any state funds at any time for any
purpose, and the indictment of him as such a defaulter was not
justified by any testimony taken by the grand jury. I immediately
suspected that there was a secret hand at work intending that this old
man should be convicted, if not of one offense, then of the other. Upon
investigation I found that there had been some informality and
illegality in drawing and impaneling the grand jury that found these
indictments. On proper motion in court I had both indictments quashed
and the matter continued for the action of the grand jury at the
succeeding term of court. At the next term of court a new grand jury
was impaneled, the foreman of which was a personal friend of the
treasurer and a very honorable gentleman. He took occasion to suggest
to me that it was very painful to him to have to find indictments
against my client, the treasurer, but that he should certainly perform
his duty in that respect. I said to him that that was all right, but it
was not right for a grand jury to find an indictment against any man
without some evidence before it, tending to show he was guilty of the
particular crime for which they found their indictment, and told him
that the former grand jury had indicted my client for defalcation as
Treasurer of State without a particle of evidence, save and except that
as treasurer of the Agricultural College board he had made default as
to that fund. The result was that this grand jury brought in an
indictment only against my client as defaulter as treasurer of the
Agricultural College, and for unlawfully using and converting to his
own use the funds of that institution. The case was continued from term
to term for several years, and in the meantime the property that had
been turned over to the trustees had been converted into money, and the
loss of the State Agricultural College had been made entirely good.
Still the indictment remained against my client and had to be tried and
disposed of. The old man had given up his house and his home and there
was much sympathy existing in the community for him, and a general
impression got abroad that he was the victim of others who had unloaded
some very unprofitable property upon him and induced him to invest in
it with the expectation that it could be re-sold to advantage and the
money refunded before it should be called for. Whether this was true or
not and who the parties were that had induced the old gentleman to
betray his trust, I do not know and have never tried to ascertain. The
time came finally that the man was to be put upon his trial. He came
into my office the day before the case was to be called for trial,
looking pale and haggard, told me he had bid his wife good-bye and his
boys and that he was prepared for the worst, that he supposed there was
no hope for him, that he could endure it but it was hard on the family
at home. I invited him into my private room and seating him at the
opposite side of my table I said to him that for the sake of his wife
and children I had made up my mind that he should be acquitted. He
looked at me incredulously and asked what I meant, and how it was
possible for him to escape conviction. He said he had already confessed
his fault and they had his confession all taken down in writing before
the investigating committee. I stepped to my safe and took out the
memoranda that I had obtained from his deputy and laid them down before
him. Looking him fully in the face, I said, "Tell me what those papers
mean?" He asked me where I got them, and said he supposed they had been
destroyed long ago. I told him no, that I carefully preserved them
because it might be, as I thought, for his interest at some time or
other to tell the truth, that there had been enough lies told about the
business, and now probably the truth might save him. He asked what I
meant. I said to him, "Here is a memoranda of the amounts that you took
out of the safe that belonged to the state of Iowa. They never were in
your hands as treasurer of the Agricultural College and you know it and
you have known it all the time. You thought I was deceived, but I was
not. I have known the truth and I hoped the time might come when the
truth might benefit you more than the falsehood." I showed him the
letter written by the deputy to President Welch. I had a memoranda of
the date of the cancellation of the $30,000 warrant issued to him as
treasurer of the Agricultural College. I looked him fully in the face
and said, "You never had that money in your hands, you never received
it, you were not at home when that warrant was cancelled, and you know
it." He sighed deeply and said, "That is true, but I told a different
story and now what am I to do?" I said to him, "All you have to do is
to tell the truth." The old man took courage and told me that I had
guessed the truth and it was true that he had never used a dollar of
Agricultural College funds. Upon the trial I introduced in evidence the
memoranda that had been kept in the safe of the State Treasurer, I
introduced the warrant that had been issued by the auditor to the
treasurer for Agricultural College funds, I proved by Dr. Welch the
letter that had been written him by the deputy and the date of the
transaction, and I satisfied the jury beyond a doubt that my client was
not guilty of the only crime for which he then stood indicted, to-wit,
defaulter to the Agricultural College funds. Judge Leonard, then upon
the district bench, had been former prosecutor in the district and did
not listen with complaisance to any defense which tended to acquit an
accused person, but after wrestling with him for quite awhile he
finally admitted my defense and the testimony sustaining it, and
instructed the jury flatly that the defendant was not on trial as
defaulter to the funds of the state of Iowa, but as defaulter as
treasurer of the Agricultural College funds, and they must find him
guilty of the latter or they must acquit him, and the jury brought in a
verdict of not guilty. This result created quite an excitement in the
community and throughout the state, and I acquired some reputation as a
criminal lawyer, but few persons understood the real nature of the
defense that was made or how it was that the defendant was acquitted in
the case, and attributed it to some extraordinary ability upon my part,
whereas in truth and in fact I only gained my case by insisting upon my
client telling and proving that which was true and abandoning a
falsehood that I suspected then and have ever since believed was
invented for him in order that other persons should not be suspected of
any guilty knowledge of what had really occurred. My client returned to
his home, to his wife and children, at least free from a record of
conviction for a felony.