Gourko v. United States
153 U.S. 183 (1894)

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U.S. Supreme Court

Gourko v. United States, 153 U.S. 183 (1894)

Gourko v. United States

No. 972

Submitted November 17, 1893

Decided April 16, 1894

153 U.S. 183


A person who has an angry altercation with another person such as to lead him to believe that he may require the means of self-defense in case of another encounter may be justified, in the eye of the law, in arming himself for self-defense, and if on meeting his adversary on a subsequent occasion he kills him, but not in necessary self-defense, his crime may be that of manslaughter or murder, as the circumstances on the occasion of the killing make it the one or the other.

If, looking alone at those circumstances, his crime be that of manslaughter, it is not converted into murder by reason of his having previously armed himself.

The plaintiff in error, a white man and not an Indian, was charged by indictment in the Circuit Court of the United States for the Western District of Arkansas with the crime of having, on the first day of November, 1892 at the Choctaw Nation in the Indian Territory, within the above district, feloniously, willfully, and with malice aforethought killed and murdered one Peter Carbo. A verdict of guilty was returned and, a motion for a new trial having been overruled, the defendant was adjudged to suffer death. The present writ of error brings up that judgment for review.

John Gourko and his brother, Mike Gourko, and the deceased, Peter Carbo, all of Polish nativity, were engaged as laborers at certain coal mines in the vicinity of the Town of Alderson, Choctaw Nation, Indian Territory. Between Carbo and the Gourko brothers, the two latter being respectively about 19 and 17 years, there was considerable ill feeling growing out of a charge made by the former that the latter had clandestinely appropriated for their benefit money due for the taking out of several lots of coal that he claimed to have dug, and with the taking of which from the mines they had no connection. Although the Gourko brothers denied this charge, Carbo

Page 153 U. S. 184

persisted in repeating it, and, according to the testimony of the younger Gourko, threatened to kill them both, and "to shoot John like a dog." Carbo was about 40 or 45 years of age, weighed about 200 pounds, possessed extraordinary physical strength, and was regarded as a dangerous character. The defendant was in delicate health, weighed about 135 pounds, and was deemed a quiet, peaceable boy.

On the morning of November 1, 1892, that being a holiday for the Polish laborers, there were quite a number of miners in the Town of Alderson. About nine o'clock, Carbo and the defendant were observed to be engaged in an angry conversation near the post office.

The postmistress at Alderson, describing what occurred, testified that Carbo would swear, and call Gourko "names, and make threats that he would hit him, or something of the kind, and shook his fist right in his face." Being afraid that Carbo was

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