Title: Amos T. Akerman to Robert McPhail Smith, 4 December 1871
Date: December 4, 1871
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.02639
Contributors to digital file: Elizabeth Lorang, Anthony Dreesen, John Schwaninger, and Nima Najafi Kianfar
Dec. 4, 1871.
R. McPhail Smith, Esq.
I recommended your suspension from the office of District Attorney in Middle Tennessee because you altered a bill of exceptions, after it had been signed, by the insertion of the words "then and there" without the consent of the Judge, or of adverse counsel. You have submitted to me a statement of Judge Trigg, and have desired that I should make known to you the effect of that statement upon my mind.
Judge Trigg, as a matter of justice to you, declares that the rule requiring exceptions to the charge of the Court to be taken at the time, has not been strictly adhered to by counsel in the U.S. Courts at Nashville—and that it has been understood that what was deemed error might be regarded as excepted to at the time without an immediate statement of the exception—and that the bill might nevertheless properly cover the taking of the exception at the time.
In the bill of exceptions which you drew up in the case in question, that averment was phrased in the usual language "then and there excepted." When it was presented to Judge Trigg he was not dissatisfied with that averment, but preferred to write out his charge in his own language, though not seriously objecting to yours. He rewrote that part of the bill and unintentionally omitted the words "then and there." These words you felt at liberty to insert, thus conforming your history of the trial to what you understood to be the implied fact.
This statement of Judge Trigg certainly acquits you of all design to misrepresent what occurred upon the trial. And while I still think that the alteration of the bill was an improper act, it is much less blamable in a moral point of view been done with the intent of making the record speak a falsehood.
A. T. Akerman,
Case of R. McP. Smith, Tenn.