Hicks v. United States
150 U.S. 442 (1893)

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U.S. Supreme Court

Hicks v. United States, 150 U.S. 442 (1893)

Hicks v. United States

No. 971

Submitted November 18, 1893

Decided November 27, 1893

150 U.S. 442

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF ARKANSAS

Syllabus

H. was indicted jointly with R. for the murder of C. Before the day of trial, R. was killed, whereupon H. was tried separately. It was clearly proved at the trial that H. did not kill C. nor take any part in the physical struggle which resulted in his death at the hands of R. There was evidence tending to show that, by his language and gestures, he abetted R., but this evidence was given by persons who stood at some distance from the scene of the crime. H. denied having used such language, or any language with an intent to participate in the murder, and insisted that what he had said had been said under the apprehension that R., who

Page 150 U. S. 443

was in a dangerous mood, was about to shoot him (H.). The court instructed the jury that it was proved beyond controversy that R. fired the gun, and continued:

"If the defendant was actually or constructively present at that time, and in any way aided or abetted by word or by advising or encouraging the shooting of C. by R., we have a condition which under the law puts him present at the place of the crime, and if the facts show that he either aided or abetted or advised or encouraged R., he is made a participant in the crime as thoroughly and completely as though he had with his own hand fired the shot which took the life of the man killed. The law further says that if he was actually present at that place at the time of the firing by R. and he was there for the purpose of either aiding, abetting, advising, or encouraging the shooting of C. by R., and that as a matter of fact he did not do it, but was present at the place for the purpose of aiding or abetting or advising or encouraging his shooting, but he did not do it because it was not necessary, it was done without his assistance, the law says there is a third condition where guilt is fastened to his act in that regard."

Held, that this instruction was erroneous in two particulars:

(1) It omitted to instruct the jury that the acts or words of encouragement and abetting must have been used by the accused with the intention of encouraging and abetting R.

(2) Because the evidence, so far as the Court is permitted to notice it as contained in the bills of exception and set forth in the charge, shows no facts from which the jury could have properly found that the rencounter was the result of any previous conspiracy or arrangement.

Under the provisions in the Act of March 16, 1878, 20 Stat. 30, c. 37, H. at the trial offered himself as a witness in his own behalf. In charging the jury, the court said:

"The defendant has gone upon the stand in this case and made his statement. You are to weigh its reasonableness, its probability, its consistency, and above all you consider it in the light of the other evidence, in the sight of the other facts. If he is contradicted by other reliable facts, that goes against him, goes against his evidence. You may explain it perhaps on the theory of an honest mistake or a case of forgetfulness, but if there is a conflict as to material facts between his statements and the statements of the other witnesses who are telling the truth, then you would have a contradiction that would weigh against the statements of the defendant as coming from such witnesses."

Held that this was error, as it tended to defeat the wise and humane provision of the law that "the person charged shall at his own request, but not otherwise, be a competent witness."

The exception to the judge's charge does not embrace too large a portion of it, and is not subject to the often sustained objection of not being sufficiently precise and pointed to call the attention of the judge to the particular error complained of.

The case is stated in the opinion.

Page 150 U. S. 144

MR. JUSTICE SHIRAS delivered the opinion of the Court.

In the Circuit Court of the United States for the Western District of Arkansas, John Hicks, an Indian, was jointly indicted with Stand Rowe, also an Indian, for the murder of Andrew J. Colvard, a white man, by shooting him with a gun on the 13th of February, 1892. Rowe was killed by the officers in the attempt to arrest him, and Hicks was tried separately, and found guilty, in March, 1893. We adopt the statement of the facts in the case made in the brief for the government as correct and as sufficient for our purposes:

"It appears that on the night of the 12th of February, 1892, there was a dance at the house of Jim Rowe, in the Cherokee Nation; that Jim Rowe was a brother to Stand Rowe, who was indicted jointly with the defendant; that a large number of men and women were in attendance; that the dance continued until near sunrise the morning of the 13th; that Stand Rowe and the defendant were engaged in what was called 'scouting,' viz., eluding the United States marshals who were in search of them with warrants for their arrest, and were armed for the purpose of resisting arrest. They appeared at the dance, each armed with a Winchester rifle. They were both Cherokee Indians. The deceased, Andrew J. Colvard, was a white man who had married a Cherokee woman. He had been engaged in the mercantile business in the Cherokee country until a few months before the homicide. He came to the dance on horseback on the evening of the 12th. A good deal of whisky was drunk during the night by the persons present, and Colvard appears to have been drunk at some time during the night. Colvard spoke Cherokee fluently, and appears to have been very friendly with Stand Rowe and the defendant Hicks."

"On the morning of the 13th, as the party were dispersing,

Page 150 U. S. 445

Colvard invited Stand Rowe and Hicks to go home with him, and repeated frequently this invitation. Finally he offered as an inducement to Stand Rowe, if he would accompany him home, to give him a suit of clothes, and a hat and boots. The urgency of these invitations appears to have excited the suspicion of the defendant in error, who declared openly that if Colvard persisted in his effort to take Stand Rowe away with him, he would shoot him."

"Sometime after sunrise on the morning of the 13th, about 7 o'clock, S. J. Christian, Benjamin F. Christian, Wm. J. Murphy, and Robert Murphy, all of whom had been at the dance the night before and had seen there Colvard, Stand Rowe, and the defendant, were standing on the porch of the house of William J. Murphy, about 414 steps west from the house of Jim Rowe, and saw Stand Rowe, coming on horseback in a moderate walk, with his Winchester rifle lying down in front of him, down a 'trail' which led into the main traveled road. Before Stand Rowe appeared in sight, the men who were on the porch had heard a 'whoop' in the direction from which Stand Rowe came, and this 'whoop' was responded to by one from the main road in the direction of Jim Rowe's house. Stand Rowe halted within five or six feet of the main road, and the men on the porch saw Mr. Colvard and the defendant Hicks riding together down the main road from the direction of Jim Rowe's house."

"As Colvard and Hicks approached the point where Stand Rowe was sitting on his horse, Stand Rowe rode out into the road and halted. Colvard then rode up to him in a lope or canter, leaving Hicks, the defendant, some 30 or 40 feet in his rear. The point where the three men were together on their horses was about 100 yards from where the four witnesses stood on the porch. The conversation between the three men on horseback was not fully heard by the four men on the porch, and all that was heard was not understood, because part of it was carried on in the Cherokee tongue; but some part of this conversation was distinctly heard and clearly understood by these witnesses. They saw Stand Rowe twice raise his rifle and aim it at Colvard, and twice he lowered it. They

Page 150 U. S. 446

heard Colvard say, 'I am a friend to both of you.' They saw and heard the defendant Hicks laugh aloud when Rowe directed his rifle towards Colvard. They saw Hicks take off his hat, and hit his horse on the neck or shoulder with it. They heard Hicks say to Colvard, 'Take off your hat, and die like a man;

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