Henry Marshall Furman was the first Presiding Judge of the Oklahoma Criminal Court of Appeals, now the Oklahoma Court of Criminal Appeals, and served as Presiding Judge from 1909 to 1916. He died after a lengthy illness, from Bright's Disease, on April 10, 1916.In Memoriam: Henry Marshall Furman, 12 Okl.Cr. xi (1916), also presented in bound commemorative volume, John Dunning Collection, Box 5, FF 10, Oklahoma History Center Archives, Oklahoma City, Oklahoma.
Early life Born June 20, 1850, in Society Hill, South Carolina, he was the son of Dr. Richard Furman [1816-1886] and his wife Mary Marshall McIver Furman [1820-1892]. Furman was educated in Greenville and Sumter, South Carolina, and worked on farms until age 21, when he set out to join his older brothers in Texas.Id. See also, Thomas H. Doyle, "Judge Henry M. Furman," in Joseph Thoburn, Vol. 5, A Standard History of Oklahoma, An Authentic Narrative of its Development 1804 (Chicago, New York: The American Historical Society, 1916). http://www.okgenweb.org/books/thoburn/bios5/furman_henry.txt.
Henry Furman took the boat from Charleston to New Orleans in 1871, and there studied law for a year in the office of a relative, Judge J. L. Whittaker. He made it to Texas the following year, finding work teaching school. He was later admitted to the bar at Brenham. In 1876, he was elected county attorney of Bell County. He resigned the office the following year and opened a law practice at Fort Worth. There he met and married Frances Hutcheson in 1879. The couple had two children, Henry Jr. and Florence. Furman and his family moved to Denver, Colorado in 1890, and from there back to Fort Worth.In Memoriam, supra, at xiii. Throughout his legal career, he tried criminal cases and prosecuted successful appeals on behalf of convicted defendants in the state and federal courts of Texas, Colorado, and the Oklahoma and Indian Territories.
Territorial Lawyer By his early 40s, Furman had matured into a formidable criminal lawyer. In 1891 he served as defense counsel in the infamous Denver trial of Harvard-educated physician and lawyer Thomas Thatcher Graves. Graves was accused of poisoning his elderly benefactor, the heiress Ms. Josephine A. Barnaby, with a solution of arsenic sent as a gift of whisky in the mail. The alleged motive for the murder was Mrs. Barnaby's dissatisfaction with the doctor's services as attorney and adviser. Prosecutors argued that Mrs. Barnaby was, at the time of her death, intent on removing the doctor from the terms of her will, from which he stood to receive a $25,000 bequest.The case was immortalized in Martin C. Day, Death in the Mail: A Narrative of the Murder of a Wealthy Widow and the Trial and Conviction of the Assassin, who was Her Physician, Attorney and Friendly Advisor (Providence Journal Print., 1892).
Dr. Graves admitted at trial that he had sent a bottle of whiskey to Mrs. Barnaby just before her death. Whether it was in fact the death bottle, and whether it was poisoned by Graves or others, were the issues at trial. Furman's client was convicted and sentenced to hang, but won a reversal on appeal. Dr. Graves committed suicide before his second trial in 1893, but protested his innocence. The case made Furman legitimately famous, as it was widely followed in the national newspapers of the day, and warranted an extensive 1921 article in American State Trials, almost thirty years after the verdict.J. Lawson, ed., "The Trial of Dr. Thomas Thatcher Graves for the Murder of Josephine A. Barnaby. Denver, Colorado, 1891," 13 American State Trials 256 (1921).
Furman brought his family to Indian Territory in 1895, first settling in Ardmore, moving to Ada in 1904. In the Twin Territories, Furman was among that group of luminary lawyers, including Moman Prueitt, Lee and A. C. Cruce, Robert L. Williams, Col. Stilwell H. Russell, and Temple Lea Houston, whose services were sought in high profile, often capital trials. In a system which still marginally allowed the use of private prosecutors, antagonists in one case were often co-counsel in the next.Id. See also, Howard K. Berry, He Made It Safe To Murder: The Life of Moman Prueitt (Oklahoma Heritage Assn. 2001); "Sam Ashton Acquitted," Chickasaw Enterprise, Pauls Valley, Chickasaw Nation, I.T., Thursday, May 30, 1901; Williams v. United States, 1902 IT 28, 69 S.W. 871; New v. Territory of Oklahoma, 1902 OK 72, 12 Okla. 172, 70 P. 198; "Collard Guilty: Murderer of Gip Railey Gets a Life Sentence" The Wapanucka Press, October 22, 1903 (describing Furman as one of the "leading criminal lawyers in the territory"); "Henry M. Furman returned from Paris, Texas where he defended Will Sealy who had been charged with murder, but was acquitted." The Daily Ardmoreite, Sunday, April 3, 1904.
Furman appears in a colorful account (written forty years later) of the 1896 murder trial of "Little Bud" Watkins, the first trial held in United States District Court for the Southern District of Indian Territory, then sitting at Ardmore, after Congress extended homicide jurisdiction to the federal courts in Indian Territory. Furman, "the foremost criminal lawyer of Texas," sat with co-counsel at a defense table "piled high with law books." Inside the railing sat the defendant, just beyond his teens, part Chickasaw, part white. At the Government's table sat United States Attorney A.C. Cruce, brother of the future governor Lee Cruce, and his assistant.Clarence B. Douglas, "The First Murder Trial," Daily Oklahoman, Sunday, December 20, 1936. http://files.usgwarchives.net/ok/grady/history/trial.txt.
The case was a sharp contest. Little Bud had killed his former employer, a prominent Gainesville cattleman named Wyatt Williams, apparently over an old insult exchanged long before on the cattle trail. The two men exchanged unknown words in Little Bud's chili joint, and an instant later, reached for their guns. Little Bud's bullet found purchase in Williams' chest, and he dropped to the floor dead, his .45 revolver half-cocked and unfired in his hand.Id.
A.C. Cruce was a great civil lawyer with political connections, but he seemed no match for the counsel retained by Little Bud's family and friends. Henry Furman "filled the record with exceptions while Cruce, a great civil law authority, knew little of the twists, turns and shrewd practices of great criminal cases." But Cruce apparently eclipsed his adversaries with a powerful closing argument and the jury returned a guilty verdict. Little Bud was condemned to hang, but his lawyers battled on. Furman had "packed the records full of errors," appealed the case, and it was reversed. A conviction and life sentence followed in the second trial, again reversed. In a third trial, following a change of venue to Paris, Texas, Little Bud was acquitted. After six years in federal custody, Bud returned to a farm outside of Ardmore.Id. The Bud Watkins case is also discussed in Von R. Creel, "On the Gallows' Edge: Capital Punishment, Appeals, and Presidential Clemency in Indian Territory, 1896-1907" 84 Chronicles of Oklahoma 162 (2004). A. C. Cruce and Henry Furman would work as co-counsel in several later trials, including the infamous murder trial of Sam Ashton, who was acquitted."Sam Ashton Acquitted," Chickasaw Enterprise, Pauls Valley, Chickasaw Nation, I.T., Thursday, May 30, 1901.
Judge Thomas Doyle said that Furman's civic work showed the "benevolence of his heart was in full accord with his master mind."Doyle, "Henry Furman," supra. As early as 1888, the Grand Masonic Lodge of Indian Territory had resolved to construct a charitable home for the care and education of orphans in Indian Territory. The aim remained unrealized when, in 1899, "the Grand Secretary again call[ed] the attention of the Craft to the importance of the Home." In 1900, however, "Brother Henry Furman is made Financial Agent for the Home's Fund," and "[t]he records of the Indian Territory Grand Lodge communications over the next several years show that he dedicated great amounts of time, personal sacrifice, and resources to the project. He seems to have single-handedly gotten the project off the ground." Furman was thereafter recognized as the father of the Masonic Children's Home, built in Darlington, Oklahoma, with funds he had raised.Masonic Charity Foundation of Oklahoma, Chronology of Masonic Charity In Oklahoma From 1888.
Henry Furman was a well-known speaker in Indian Territory, discoursing on the issues of statehood and self-government. In the 1907 Democratic preferential primary race that preceded statehood, he received the second highest number of votes for nomination to one of the two new Oklahoma seats in the United States Senate. This outcome technically entitled him to the Democratic nomination. However, the State Democratic Committee had resolved in a gentlemen's agreement that Oklahoma's Democratic candidates for Senate would include one candidate from each of the former territories. Despite the urging of some of his friends to claim the nomination which was his by legal right, Furman waived his right to the nomination in favor of a blind, brilliant lawyer from Lawton, Oklahoma, Thomas P. Gore.A. M. Gibson, Oklahoma: A History of Five Centuries 201 (University of Oklahoma Press, 2d ed., 1985).
The First Legislature of the new State of Oklahoma passed H.B. 397, "[a]n act creating a Criminal Court of Appeals, and defining the jurisdiction of said court." Governor Charles N. Haskell signed the bill creating the Court on May 18, 1908, and on September 9, 1908, the Governor appointed Henry M. Furman of Ada as the Court's first Judge. Three days later, H.G. Baker of Muskogee, and Thomas H. Doyle of Perry, received the Governor's appointments, and the Court had its first three Judges. The Court convened in session for the first time on September 16, 2008.Janis Hubbard, "The History of the Court of Criminal Appeals," 75 Oklahoma Bar Journal 100 (September 11, 2007). See also, Hon. Thomas G. Andrews, Oklahoma: A Judicial History, unpublished manuscript, undated, Thomas G. Andrews Collection, Box 1, FF 10, Oklahoma History Center Archives, Oklahoma City, Oklahoma.
"The Letter Killeth; 'Tis the Spirit that Giveth Life" In seven years and seven months on the Criminal Court of Appeals, Judge Furman surprised those who thought him too defense-oriented or partisan to make an appellate judge.Address of Judge Thos. H. Owen, of the Muskogee Bar, printed in In Memoriam, supra, at 3, 8. He delivered thoughtful opinions in forceful and lively prose, often using Biblical allegories. A pragmatic, populist, and distinctly moral temperament emerged in his work. He strongly sensed the Court's important purpose in shaping a working, everyday legal system for the 46th State.
The sooner the criminal jurisprudence of Oklahoma is placed upon a just, uniform, and harmonious basis, the better it will be for parties having cases in court, as well as for the entire people of the state. Courts are not established for the purpose of enabling lawyers to earn and collect fees. The supreme purpose of their creation is the enforcement of justice and thereby protecting the people in the quiet and peaceful enjoyment of their property, their liberties, and their lives. Every other consideration is secondary, and must yield to this supreme purpose.McLellan v. State, 1909 OK CR 95, 2 Okl.Cr. 633, 103 P. 876.