A HISTORY OF THE MIAMI COUNTY COMMON PLEAS COURT
By John Fulker
If all that is past is truly prologue, then a complete history of our common pleas court system should properly begin with the Magna Carta, that epic and seminal document which the English feudal barons forced King John to sign at Runnymede in the year 1215; however, an undertaking of that exquisite magnitude is one which would quickly exceed both my commission and my energies. Perhaps a more meaningful starting point, at least for the relatively local purpose of this discussion, would be the familiar, but poorly appreciated, Northwest Ordinance of 1787.
Encouraged by the activities of the newly formed Ohio Company of Associates directed towards the settlement of lands along the Ohio River, the financially strapped Confederate Congress enacted the Ordinance on July 13th, 1787 in an attempt to promote sales of large tracts of lands from within the Northwest Territory, i.e. that immense area lying west of Pennsylvania and located between the Ohio and Mississippi Rivers. It comprised the territory, which would ultimately be divided into the new states of Ohio, Indiana, Illinois, Michigan, Wisconsin and part of Minnesota. The Ordinance provided for both the organization and the government of the territory. Section 4 prescribed the architecture for a judiciary:
There shall also be appointed a court, to consist of three judges, any two of whom to form a court who shall have a common-law jurisdiction, and reside in the district, and have each therein a freehold estate, in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behavior.
And Section 5 worked some little disservice to the recently emergent principle of separation of powers when it provided that:
The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district...
The suspension of the principle, however, was no more than a temporary expedient; the Section contained specific limitations on the judges’ participation in the legislative process:
...which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by the Congress; but afterwards the legislature shall have authority to alter them as they shall think fit.
Settlement of the Ohio Territory progressed in the manner contemplated by the Ordinance and was governed in accordance with its provisions, specifically including those which pertained to the administration of justice. Then, some 14 years after the adoption of the Ordinance, the population of Ohio reached 60,000 and the Territory thereby became eligible for statehood. A Constitutional Convention was held in Chillicothe in November of 1802 and a constitution was adopted; that document was formally approved by the U.S. Congress and Ohio was admitted, on February 19, 1803, as the 17th state of the Union.
Article III of the Ohio Constitution of 1802 provided that the judicial power of the state, both as to matters of law and equity, should be vested in a supreme court, courts of common pleas for each county, justices of the peace, and in such other courts as the legislature might, from time to time, establish. With specific reference to the courts of common pleas, the state was to be divided into three circuits, each of which was to have a president and not more than three, nor less than two, associate judges. The president and the associate judges, any three of whom would constitute a quorum, would comprise the court of common pleas for the county. The phrase “court of common pleas” originated with the Magna Carta and initially referred to that branch of the curia regis wherein disputes between the common people, i.e. subjects as distinguished from nobles, were heard and resolved. Under Ohio’s new constitution these courts were invested with complete jurisdiction pertaining to the common law, chancery, criminal cases, probate and testamentary matters; they were expressly designed as “conservators of the peace.” The president and associate judges were appointed by joint ballot of both houses of the general assembly for the term of seven years, “...if so long as they behave well.”
Miami County did not exist as a separate entity until 1807 when the general assembly carved it out of those lands which had formerly been a part of Montgomery County. As originally constituted, Miami County included that which is presently Darke and Shelby Counties (Darke was detached in 1809 and Shelby, in 1819). Upon the formation of Miami County, Governor Edward Tiffin appointed John Gerard, John H. Crawford and William Barbee, Sr. as associate judges of the court of common pleas. None of these persons were lawyers; Francis Dunlavy, who was a lawyer, was the first President of the court. The first session of the new court was held on June 23, 1807 at Peter Felix’s house in Staunton. Regular sessions were held at that location until November of 1808; by that time Benjamin Overfield’s two-story house and tavern had been completed at the northeast corner of Water and Mulberry Streets in Troy and the court began to meet in the upstairs room above the tavern. In retrospect, it was an interesting and, certainly, more primitive time in our history. One well-documented anecdote from the era makes the point. It seems there was an occasion in 1808 when Arthur St. Clair, Jr. and a Mr. George Kerr were partaking of Mr. Overfield’s stimulants in the barroom directly below the area where court was in session; they were apparently making somewhat more noise than the judges thought appropriate and Judge Dunlavy sent Sheriff Stephen Dye down with instructions to invite them upstairs. When the two men appeared, the Judge announced, “Gentlemen, the court fines you $2.00 each for contempt.” Mr. Kerr promptly responded, “It bears me in mind you might as well say $10.00,” and Judge Dunlavy accepted the challenge with alacrity. “Well,” he said, “I say $10.00, what do you say, Brother Barbee?” To which Judge Barbee replied, “I say $10.00 for Mr. Kerr.” The order was entered, but after the fines were paid Mr. Kerr couldn’t resist a single parting shot. “Ten Dollars,” he snorted. “Judge Dunlavy, you needn’t put on such airs with me; I knew you when you were so poor you had to lie in bed while your wife washed your breeches.” Mr. Kerr may well have been emboldened not only by the effects of strong drink but also by the fact that his companion, Arthur St. Clair, Jr. was the son of the first governor of the Northwest Territory and had himself been Miami County’s first Prosecuting Attorney.
Because there was not yet a courthouse in being, the early sessions were held in a succession of different locations. Thus, after Overfield’s, the court sat at Crawford’s establishment (1809), at Westfall’s (March, 1811) and at George Fennery’s (May, 1811). By August of 1811, a second floor had been added to the single-story jailor’s residence, both of which had been constructed on the south side of West Main Street between Plum and Cherry Streets (Lot 42) and that second-story accommodation became, technically speaking, Miami County’s first courthouse. Insofar as I have been able to ascertain, Miami County’s first murder trial was held in this small courtroom above the old log jail. In 1816 a man named Armstrong was convicted of the murder of his wife and sentenced to be hanged; his sentence was later commuted to that of life imprisonment and he thus escaped execution. This first courthouse soon proved to be insufficient to the needs of the county because in 1815 construction of a new, two-story, red brick courthouse was begun in the south portion of the public square.
During the period this first courthouse was in service, the opening battle of Miami County’s infamous “Courthouse War” was waged. A concerted effort was made between 1811 and 1816 to induce the legislature to relocate the county seat to Piqua and a series of petitions and letters were addressed to the General Assembly and to the local newspapers by champions of both towns. This first battle was ended in February of 1816, when the General Assembly formally rejected the proposal to establish Piqua as the new county seat.
Construction of the second courthouse progressed slowly and the building was not ready for occupancy until 1825. Although the original contract with William Barbee, Jr. and Fielding Lowry specified a total price of $2,475, it is estimated that the ultimate cost was nearer $4,500. Popularly known as the red-brick courthouse, this second courthouse had a modern style hip roof, a cupola and a bell tower. It was surrounded by a wooden fence which served to keep stray dogs, pigs and cows at bay and, at the same time, afforded a comfortable seating accommodation for members of the public. The courtroom was located on the second floor and was lighted with tallow candles placed in tin reflectors. The first floor consisted of four rooms which were occupied by other county offices. This building, however grand it had seemed when new, soon proved inadequate for the burgeoning business of the county and the escalating demands on the court. It was obvious that a larger, more commodious facility was needed.
As it happened, in February of 1840, the County Commissioners let a contract to Andrew Turnbull of Delaware, Ohio for construction of a new courthouse to be located on the precise site of the first rude courtroom which had been built above the log jail and jailor’s residence on West Main Street. Completed in July of 1841 at a cost of $15,325, this third courthouse was a truly imposing structure, constructed with 22" thick solid brick walls, ornamented with white ionian columns, topped by the bell tower and cupola from its predecessor, and surrounded by decorative fencing. By contemporary standards the new courthouse was an enormous edifice, measuring some 80 feet long, 50 feet wide and 38 feet high. As before, the common pleas court was located on the second floor and the more mundane county offices were consigned to the street level.
Although its use as a courthouse was discontinued in 1888, the building still stands just across the street from the present Miami County Safety Building. During its 47-year tenure as the situs of the common pleas court, the building hosted some of the better known jury trials, at least on a local basis, of the nineteenth century. Perhaps the most sensational of these was the 1856 trial of Jane Elizabeth Ragan, an extraordinarily attractive young Sunday-school teacher who was tried for the poisoning death of her husband; although she had openly admitted her crime in several judicial proceedings, her confession could not be used against her and she was ultimately acquitted. Then, in 1859 came the trial of Michael Hobatta who has been described as “one of the most despicable wretches that ever infested the county.” Two men, Hobatta and a man named Manning, were traveling together on their return from California’s gold rush. Manning, who had been successful in his enterprise, was en route to his home in Kentucky; Hobatta, who had failed, had managed to induce his friend to accompany him to his father’s home near Piqua. Just before they arrived at their destination, Hobatta shot Manning to death, helped himself to his money and to his gold rings, and left him where he had fallen. Public indignation over the killing ran high and Constable Harrison Gale was hard-pressed to prevent a lynching. When Hobatta was ultimately convicted of murder in the second degree and thereby cheated the executioner there was yet a second public outrage, both here and at Manning’s home in Kentucky where Hobatta was indeed hanged, if only in effigy.
The most politically charged murder trial ever held in the county was also tried in the 1841 courthouse. It arose out of the intense feelings generated by the slavery issue and the War Between the States. During those troubled times a Dayton man with “Copperhead Party” affiliations published a newspaper which was highly critical of the Union cause. The publisher was named Bollmyer and the newspaper was simply called “The Empire.” The sentiments expressed in the newspaper generated considerable ill-will and contention within Montgomery County so that it was perhaps inevitable that Mr. Bollmyer would shortly become the object of widespread and deep-seated animosity. One evening an ardent Union sympathizer, Henry Brown, called at Bollmyer’s home in Dayton, called him to his door and shot him dead. Brown was promptly arrested and an outraged mob, formed among Bollmyer’s friends, threatened a lynching. The prisoner was quickly transferred to the Miami County jail for his own protection. He ultimately secured a change of venue and was tried in the 1841 courthouse before a Miami County judge and jury. Incredibly, in August of 1863 and after a crowded and highly publicized trial, Brown was acquitted and released.
Then, in 1880, at a time when Ohio law required that a person condemned to death must be executed in the county where convicted and sentenced, there came a black man named George Mitchell. He had, perhaps with some little provocation, hacked his common-law wife to death with a homemade corn knife. Tried in the 1841 courthouse before Judge Henry H. Williams and a twelve man jury, he was swiftly convicted and sentenced to death. Because of the requirement for local execution George Mitchell now enjoys the dubious distinction of having been the only person ever actually executed in Miami County. He was hanged from a traveling gallows which was generally stored in Dayton, but was transported from county to county as needed. It would be assembled on the spot, used for its grisly purpose and then disassembled and returned to Dayton or sent on to the next county in which a hanging had been scheduled.
During this time in our history, the make-up of the common pleas court was subtly changed. A second constitutional convention was held in Columbus in 1850-51 and a new constitution became effective in 1851. Article IV of the 1851 Constitution created a level of appellate courts between the common pleas court and the supreme court. Initially designated District Courts, thereafter Circuit Courts, and now Courts of Appeals, these intermediate courts have evolved (by virtue of subsequent constitutional amendments and statutory enactments), into our present system consisting of 12 Appellate Districts, each with its own Court of Appeals. Miami County, along with Clark, Darke, Champaign, Greene and Montgomery, is included within Ohio’s 2nd Appellate District.
As a further result of constitutional amendments and legislative enactments, the so-called Associate Judges were eliminated, as was the appointive process, and our common pleas judges are currently elected for 6 year terms. The probate court, originally created as a separate court by an 1852 constitutional amendment, was made a division of the common pleas court by the 1968 Modern Courts Amendment to the Constitution, effective November 6, 1973. Additional divisions of the common pleas court, for domestic relations and for juvenile matters, have since been established by the legislature pursuant to authority granted by the 1968 amendment.
The infamous Miami County Courthouse Wars wore on, in a series of local skirmishes of varying degrees of fervor, throughout most of the nineteenth century. The final battle, one of considerable intensity, was waged in the 1880s when it became obvious that the increasing business of the courts would once again require greater accommodations. Anticipating that the county commissioners would once again commission the construction of a new courthouse and thereby confirm the location of the seat of government in Troy, a group of Piqua residents petitioned the General Assembly to intervene. In response to their formalized request, the legislature caused a special commission to inquire into — and settle — the dispute. Tradition has it that the visiting legislators spent the first day in Piqua where they were treated to a conducted tour of the town and a review of its industrial strength; the next day they were given a similar tour of Troy and were then royally feted at a special banquet held in their honor at the sumptuous Lollis Hotel. The banquet lasted well into the night and an abundance of free spirits was provided. Whether as a result of the differential treatment of the visiting dignitaries or otherwise, the legislature ultimately determined that the seat of county government would remain in Troy.
The cornerstone for the “new” courthouse was laid in July of 1885; nearly three years later, in January of 1888, the building was placed into service. Designed by Columbus architect J. B. Yost and constructed under the supervision of T. B. Townsend of Zanesville, the three-story edifice which tastefully combined the best of Roman and Grecian architectural motifs, was constructed at a cost in excess of $400,000. Today, well over a hundred years and two major renovations later, this grandly elegant and gracious structure still stands at the center of what has come to be known as the “Courthouse Plaza.” It served to house the common pleas court and most of the other county offices for more than 86 years — until construction of the adjacent Miami County Safety Building — and it now houses the Miami County Municipal Court system.
In the spring of 1918, some 30 years after the completion of this new courthouse, a young adventurer actually scaled its exterior walls, the dome and the surmounting statuary to affix an American flag onto the head of the statue of “Justicia”, the goddess of justice who holds sway at the very pinnacle of the building. Then, several weeks later, at the urging of members of Troy High School’s Lowell Literary Society and to the great consternation of the members of the competing Whittier Society, the same young man repeated his daredevil stunt in order to affix the Lowell Society flag to Justicia’s head, just above the American flag and well above any height attainable by the Whittier boys. The event occasioned some little discomfiture to the incumbent county officials, most especially to County Commissioner Charles Jackson who just happened to be the young man’s father. When asked to climb back up and retrieve the offending flag, the young man demurred; he had gone to a great deal of trouble planting it there in the first instance and he sure lord wasn’t about to undo what he had wrought. Because there was no other recourse, Sheriff Barnett directed his deputies to shoot the staff and thereby fell the flag. The young man, who just happens to have been my mother’s brother, never lost his zest for life or his penchant for the extraordinary. Uncle Bill was killed this past January, 2001, when struck by a pickup truck while pedaling his bike in California traffic; he was just 2 weeks shy of his 103rd birthday.
The 1888 courthouse provided the forum for one of the most celebrated criminal trials of the waning 19th century. In 1893 a locally prominent man named Jefferson Shank was tried for three long weeks for the murder of his wife; he was convicted of murder in the second degree and sentenced to life imprisonment at the Ohio State Penitentiary. He was a model prisoner, soon became a trusty and was finally pardoned by the Governor.
The first notable trial of the 20th century was that of Donato DiIulio, an Italian immigrant who was tried for the murder of a young Covington woman to whom he had believed himself to have been engaged; when she spurned his attentions, he shot her to death at close range and then turned the gun on himself. Although he shot himself in the head -- twice -- he survived to stand trial in the spring of 1908. Because he spoke virtually no English, the Court appointed the Italian Consul for Cincinnati to act as interpreter for the week-long trial. DiIulio was convicted, with a recommendation of mercy, and was sentenced to life imprisonment. He died in prison two years later at the age of 22.
In early 1926, the Miami County Common Pleas Court received national attention when Jacob Nesbitt, a member of Troy’s social elite, appeared before Judge Walter D. Jones to plead guilty to the 2nd degree murder of his wife in Troy’s infamous “bathtub murder.” Sentenced to life imprisonment, he served less than 10 years of preferential prison time before being pardoned and released. Even now, more than 75 years after the event, there persists a strong local perception that he took the rap for another, yet more prominent, member of the community’s social set.
During its 86-year reign as home for the Miami County Common Pleas Court, the 1888 courthouse served as the arena for a number of local trials. That number would certainly include the 1916 trial of Forrest “Slicker” Knoop for the bludgeoning murder of Frank Favorite at a Miami River island clubhouse, the 1938 murder trial of Lonnie Hight for the shotgunning death of his wife’s paramour (even though the victim died of the effects of a tetanus shot administered by a local physician) and the 1947 trial of Don Lee Reid (an hermaphrodite) for the stabbing death of his father.
Because the last half of the 20th century has just recently closed, we probably lack a proper perspective to discern which of the multitude of cases tried in our common pleas courtrooms will prove to be truly memorable. Nominations for that characterization are still open. Clearly among those to be considered would be the 1954 trial of Piqua City Auditor Horace Day for embezzlement, the 1956 trial of Eddie McMullen for the robbery-murder of Cleve Chipley, the 1957 trial of Dow Johnson for the murder of his wife’s paramour, the widely publicized plea of Hobart Company executive Omar Tobias to larceny by trick in 1958, and the 1964 trial of 14 year-old Charles Kennedy for the savage stabbing death of his step-father. There are, of course, many others that will come to mind, civil as well as criminal, and history will determine the winners.
In 1973 the common pleas court moved from the 1888 courthouse into the “new” Miami County Safety Building located on the east side of the Courthouse Plaza. And there it resides today, in all its divisions: general, probate, domestic relations and juvenile. Also in 1973 the legislature made provisions for a second judgeship for the general division. By statute, the “term” of any division of a court of common pleas is one year; however, the statutory scheme also permits the judges of the division to divide the one-year term into separate sessions for purposes of jury selection. The Miami County Common Pleas Court has, by local rule, established a division of the court calendar into January, May and September sessions. The judges are elected within each county by local election. Their compensation is fixed by state statute based on population and despite the fact that their salaries are paid partly by the state and partly by the county, the judges consider themselves to be, for most purposes, state employees.
Our court is fortunate to have enjoyed the services of a long line of distinguished jurists. The Honorable Robert J. Lindeman and the Honorable Jeffrey M. Welbaum are the current judges of the General Division of the Miami County Common Pleas Court and the Honorable Lynnita K. C. Wagner is the current Judge of the Probate Division. Their predecessors in office, in chronological order, have been:
* Elected to Circuit Court in 1899
** Appointed to U. S. District Court in 1966
*** Elected to Second District Court of Appeals in 1981
John Fulker, 2001*
Judges Lindeman and Welbaum are grateful to Attorney John Fulker for his contribution of this article to our web page. Mr. Fulker has brought refreshment and perspective to this present day information. For those readers who are not from this region, John Fulker is a renowned local historian and author. He has written three books concerning celebrated criminal trials, which were held in Miami County, Ohio. These three books are wonderful reading:
Chicken Soup, Cheap Whiskey, and Bad Women, Orange Frazer Press, Wilmington, Ohio, 2000,
The View From Above, Libra Publishers, San Diego, Calif, 1992, and
And True Deliverance Make, Marshall Jones Company, Francestown, N.H. 1985