A Statute of Arkansas, Digest of 1884, 425, c. 45, § 1498,
provides that "an infant under twelve years of age shall not be
found guilty of any crime or misdemeanor." The courts of .that
state have held,
Dove v. State, 37 Ark. 261, that the
common law presumption that a person between the ages of twelve and
fourteen is incapable of discerning good from evil until the
contrary be affirmatively shown still prevails. A homicide was
committed in May. A young person, charged with the commission of it
testified on his trial in the Circuit Court for the Western
District of Arkansas in the following February that he would be
fifteen years old the coming March. The court charged the jury that
the
prima facie presumption as to lack of accountability
terminated at eleven years of age.
Held that, although the
accused by his testimony had shown that he had passed the age of
fourteen when the crime was committed, yet, as the mistake might
have prejudiced him with the jury, it was error.
To direct the attention of the jury to the contemplation of the
philosophy of the mental operations upon which justification or
excuse or mitigation in the taking of human life may be predicated
is to hazard the substitution of abstract conceptions for the
actual facts of the particular case as they appeared to the
defendant at the time.
When the defense in a case of homicide is justification or
excuse or action in hot blood, the question is one of fact which
must be passed upon by the jury in view of all the circumstances
developed in evidence, uninfluenced by metaphysical considerations
proceeding from the court.
The question whether the defendant in a capital case exceeded
the limits of self-defense or whether he acted in the heat of
passion is not to be determined by the deliberation with which a
judge expounds the law to a jury, or with which a jury determines
the facts, or with which judgment is entered and carried into
execution.
Alexander Allen was indicted at the November term, 1892, of the
Circuit Court for the Western District of Arkansas for the murder
of Phillip Henson in the Cherokee Nation, on May 14, 1892, and at
the February term, 1893, of that court was tried upon the
indictment, found guilty of the crime charged,
Page 150 U. S. 552
and, after the overruling of a motion for new trial, was
sentenced to death. A writ of error was then allowed to this
Court.
The evidence tended to show that Allen was a colored boy, of
about fourteen years of age at the time of the homicide, working on
the farm of Albert Marks in the Cherokee Nation, some three or four
miles from Coffeyville, Kansas, where Marks lived. That on
Thursday, May 12, 1892, he was sent to look for some horses
belonging to one Morgan, and was accompanied by another colored
boy, James Marks, who was then twelve years old. That these boys
met Phillip Henson, the deceased, a white boy, eighteen years of
age, with whom were George Erne, aged fourteen, and Willie Erne,
aged thirteen, also white, and some words ensued between Henson and
Allen. In respect of this, the Erne boys testified to nothing of
particular moment, but the accused and James Marks testified to
great bitterness in the language used by Henson, including threats
and oaths. On Saturday, May 14, Henson and the two Erne boys had
left the Erne house, and were going through a wheat field towards a
lake, in an easterly direction, carrying in their hands willow
sticks with the bark peeled off, with which to kill frogs to use as
bait in fishing, and when about half way across the field they saw
on the eastern side of the fence which separated it from the land
of Albert Marks, Allen and Harvey Marks, a brother of James, then
eleven years of age. An altercation ensued, in which Allen shot
Henson with a pistol, from which wound he died in a few minutes.
According to the evidence of the Erne boys, Allen took the pistol
out of his hip pocket, removed the scabbard, handed it to Harvey
Marks, and climbed through the wire fence from the east side to the
west side, struck Henson with his left hand, and then with the
pistol in his right hand shot Henson twice, and shot George Erne
through the arm. Allen and Harvey Marks testified that Henson and
his two comrades came through the fence on the west side into
Marks' ground, and Henson struck Allen over the head with a stick;
that Henson and Allen closed in and wrestled, and Henson threw
Allen and had him down, and George Erne then struck Allen on the
arm with a
Page 150 U. S. 553
stick; that Allen, while lying on the ground with Henson on him,
drew the pistol from his pocket, and shot Henson, who, after he was
shot, ran towards the fence, about forty steps off, and climbed
through it back into the wheat field. His dead body was found lying
in the field about thirty or thirty-five steps from the fence. The
face seemed bruised, as if he had been struck in the mouth.
Evidence was given that the tracks of the three boys were plain and
distinct the next day in the soft ground, going in a northeasterly
direction in the field towards the lake, and that the wheat was
trampled down, and there was blood on the ground at the distance of
thirty-eight steps from the fence. That from this point to the
fence there was a single track made by shod feet coming over the
fence westward, while the other three tracks were made by bare
feet, and that Henson and the two Erne boys were barefooted on that
occasion, while Allen had on either boots or shoes. That there was
short grass on the east side of the fence, and, although there were
tracks around there, it was difficult to discover anything. There
was also evidence that Allen, after the shooting, ran back to the
house, obtained his satchel, went to Coffeyville in a cart, and
thence on foot to Edna, Kansas; that Clifford, the United States
Marshal for the District of Kansas, and one Knotts, found him at
Edna, about half-past twp that day; that he fled, and they pursued
and caught him; that Knotts returned with him to Coffeyville, and
on the way asked him if he knew that he had killed that boy, and he
said no, that he knew he shot him, but not that he killed him, and
then stated that there was a man shot in Oswego, and that nothing
was done with him, and, being asked what he shot the boy for, he
replied he was afraid they would hurt him with their sticks; that
they did not strike him with sticks, but he was afraid they would;
that they had had trouble a few days before. It further appeared
that he told Clifford he "didn't propose to be beaten with clubs;"
that the deceased struck him over the arm, and that Clifford
examined his person on the 16th, and found a bruise on his left
arm. The evidence further tended to show that on the morning of the
14th of May, Allen did not have his pistol with him, but, having
started with a load of
Page 150 U. S. 554
hay to town, met Harvey Marks coming down to the farm for milk,
and was told by William Marks (Harvey's grandfather) to go back
with Harvey, which he did, and then went into the farmhouse, and
took the pistol from his overcoat pocket, where he had placed it
two days before. This pistol was found in his satchel when he was
arrested, and was a six-shooter, with a rubber scabbard on it, and
one load in it. Three empty cartridge shells, which fitted the
pistol, were found in his pocket, and Allen, when asked by Clifford
to account for the empty shells, stated that he had emptied his
pistol shooting rabbits on his way out there from Coffeyville. When
asked on the stand why, when he went to Coffeyville, he had not
gone and seen Albert Marks about the matter, and told him what had
occurred, or hunted up Mr. Morgan, Allen replied because he did not
think it was worthwhile. "It wasn't my business, because I had done
it, to go around and tell every one about it." James and Harvey
Marks were cross-examined to show that there were discrepancies
between their statements on the witness stand and statements which
they had made to the marshal May 21, and which were taken down in
writing by him at the time.
The court, in the course of the charge to the jury, stated that
it was necessary that he should give
"the legal definition of all these conditions that I have named,
that is, murder, manslaughter, and a rightful killing under the law
of self-defense, called a killing in self-defense;"
and, after defining murder and explaining malice, express and
implied, and giving the definition of manslaughter, with comments,
all at length, proceeded thus:
"Now in this connection, if you believe at the time of this
killing, Henson and these other boys had entered into a fight, had
come up and attacked the defendant with sticks, as is claimed by
him, and as is claimed by some of these other witnesses, and that
he killed him at that time, and under such circumstances, if it was
not done in a brutal and unnatural and specially wicked way, that
would be a state of case where manslaughter would exist, provided
the defendant by his actions of a violent character and his conduct
did
Page 150 U. S. 555
not bring on the conflict of that kind. If he brought it on, if
he precipitated it by a violent act upon his part, then there could
be no mitigation in it; there could be no self-defense, as I will
tell you presently. But if, on the other hand, he went up and put
his pistol across that fence, and jumped over the fence, and
attacked the Henson boy, struck him in the mouth, and at the same
time attempted to shoot him, and subsequently, in the consummation
of that attempt, did shoot him, and followed up that shooting when
he was retreating, and shot him in the back, that would be a state
of case where there would be no manslaughter in it. It would be
murder under the definition of that crime as I have given it to
you."
"We come now to the other definition. It has been invoked in
this case. And I give it in these cases whether it has been invoked
or not, because we can frequently reason and come to a conclusion
by means of elimination, just as in algebra you can eliminate
certain quantities from a certain side of an equation, and thus get
at a certain quantity, and get at a methodical conclusion in a
reasonable way in that manner. Now if we have the definition of
these three conditions. and if you can eliminate two of them, you
necessarily drop down to the other condition as existing, because
there cannot be but one which is true. The conditions are the
opposite to each other, and you cannot find the existence of any
two of them in a case. There is one certain condition that is
applicable to the facts. Therefore, when you have these conditions
all before you, you can the better say whether it is murder or
manslaughter, or a case of justifiable homicide. [Now what is
justifiable homicide? When can a man slay another? When can he sit
as a judge passing upon the law, and a jury passing on the facts,
and then as a jury applying the law to those facts, and finding a
verdict, and then acting again as the court and entering up
judgment, and then going out as a marshal or sheriff and executing
that judgment, all at the same time -- determining the law,
determining the facts as judge, jury, and executioner all at the
same time? This is a mighty power in the hands of the citizen. It
is a mighty power, yet it is to be applied when
Page 150 U. S. 556
it belongs to him because it is the law of necessity, and it is
given to him because it is the law of necessity; it is given to him
because at the time he executes it in a deadly way his own life is
either actually or really in deadly peril from which he cannot
escape except by the use of that deadly means, or, in your
judgment, taking into consideration his condition, there was
reasonable ground to believe there was peril. That is what is meant
by it. It is a law of protection; it is a law of necessity. This is
the law you are sitting here to execute. It is a law of
self-defense. You are to execute it for the sake of society, for
the protection of the members of society against the acts of
violence of the wicked, which would destroy their rights to their
property, jeopardize their liberties, and destroy their lives. It
is all a law of self-defense. The necessity is so great, in
contemplation of the law, that the individual can take human life.
Now I will give you this principle of the law as defined by the
leading court in this country, and a definition that has never been
shaken by any court, and it is stated in very brief language, but
there is a great deal in it. There are two propositions. One is a
case where the danger to life is actual, is real at the time of the
killing, and that the party cannot escape from it by the exercise
of reasonable means, and he therefore, to save his own life, may
act, and act to the extent of taking life. I read to you that first
proposition, and it is this: 'A man who is in the lawful pursuit of
his business' -- that means he is doing what he has a right to do,
he is doing no wrong -- and when in that condition,"
"he is attacked by another under circumstances which denote an
intention to take away his life or to do him some enormous bodily
harm, he may lawfully kill the assailant, provided he use all the
means in his power otherwise to save his own life or prevent the
intended harm, such as retreating as far as he can, or disabling
his adversary without killing him, if it be in his power."
"He is doing what he had a right to do, and when so situated he
is attacked by another in such a way as to indicate from the nature
of the attack a purpose to take away his life; not that he is
assaulted in a slight way. You could not kill him for that;
Page 150 U. S. 557
the law of self-defense is a law of proportions as well as a law
of necessity, and it is only danger that is deadly in its character
that you can exercise a deadly act against. He is attacked by
another in such a way as to denote a purpose to take away his life
or to do him some great bodily harm from which death may follow,
and in such a case he may lawfully kill the assailant when,
provided he use all the means in his power otherwise to save his
own life or to prevent the intended harm, such as retreating as far
as he can or disabling him without killing him, if it be in his
power. The act coming from the assailant must be a deadly act under
this proposition. It must be an act that is hurled against him, and
that he has not created it or created the necessity for it, and it
must be an act of which he cannot avoid the consequences. If he
can, he must avoid them. He must get out of the way of the act if
he can, rather than take upon himself the responsibility of taking
a human life.]"
"Now the other proposition is a case where the danger may not
really exist at all. It may not have any existence, but there must
be at the time he takes life that which would satisfy a reasonable
man, situated as was the defendant, that it did not then and there
exist, and a man may act upon its appearance, but there must be an
appearance. A man cannot act upon bare suspicion of his own mind.
He cannot contemplate a state of case that does not exist. If he
has that confronting him which would lead a reasonable man,
situated as he was, to the belief that there was deadly danger, he
could act upon that condition, and he may kill, provided he cannot
avoid what seems to be real danger."
To the giving of that part of the charge included in brackets in
the foregoing, the defendant at the time excepted.
The court also charged the jury as follows:
"Now a word as to the accountability of this defendant. The law
says that when a child between the years of seven and eleven
commits a crime, he is presumably not held accountable, yet this
presumption may be overcome by proof. But from eleven years up. the
law contemplates that he is accountable for his criminal acts; that
he is said to be conscious of right and wrong, so as
Page 150 U. S. 558
to be held responsible by the law, and to take away that
condition it requires the production of proof showing the lack of
accountability. In legal contemplation, from eleven years upwards,
he is accountable."
To the giving of this part of the charge the defendant at the
time excepted.
An exception was also taken to certain comments of the court in
reference to the testimony of the defendant.
Errors were assigned upon the exceptions so taken.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The rule of the common law was that one under the age of seven
years could not be guilty of felony, or punished for any capital
offense, for within that age the infant was conclusively presumed
to be incapable of committing the crime, and that, while between
the ages of seven and fourteen, the same presumption obtained, it
was only
prima facie, and rebuttable. The maxim "malice
supplies the want of maturity of years" was then applied, and upon
satisfactory evidence of capacity, the child within these ages
might be punished, but no presumption existed in favor of the
accused when above fourteen.
The age of irresponsibility has been changed in many of the
states by statute, and, among others, in Arkansas, where it is
provided that "an infant under twelve years of age shall not be
found guilty of any crime or misdemeanor," Ark.Stat.Dig. 1884, p.
425, c. 45, § 1498, it being held, however, that the common law
presumption that a person between the ages of twelve and fourteen
is incapable of discerning good from evil, until the contrary be
affirmatively shown, still prevails,
Dove v. State, 37
Ark. 261.
In the case at bar, the defendant testified on the trial,
February 13, 1893, that he would be fifteen years old the coming
March, and, if this were so, he was fourteen in March, 1892,
Page 150 U. S. 559
and, as the homicide was committed on May 14th of that year, he
was at that time some two months older than fourteen years. There
seems to have been no controversy over his age, and as to whether
his appearance was that of a boy less than fourteen we have, of
course, no means of knowledge. The court was not, so far as this
record shows, requested to charge in reference to the age of
accountability, and it may be, as suggested, that the matter was
adverted to out of consideration for the accused, because
immediately after the statement on this subject, the learned judge
goes on say that defendant could not be found guilty of any crime
unless the jury were satisfied from the whole of the testimony and
from the law given to them "that the state of the case which makes
the crime is established beyond a reasonable doubt." But this he
was bound to charge in any aspect, and the difficulty here is that,
through some inadvertence, the
prima facie presumption as
to lack of accountability was declared to terminate at eleven years
instead of fourteen. And while it is properly argued by counsel for
the government that this was not an error injurious to the
defendant because on his own statement he had passed the age of
fourteen, yet we are not altogether satisfied that the result was
not prejudicial. Where the question is whether the homicide was or
was not done with malice, wrongfully, intentionally, and without
just cause or excuse, it would seem proper that the attention of
the jury should be called to the youthfulness of the offender if
the circumstances rendered that fact significant, and since in this
case the presumption of the lack of accountability had obtained
until within two months of the homicide, if the defendant's own
statement as to his age is to be accepted, an instruction which
treated him as having been under the weight of full accountability
three years longer than was the fact may have tended to weaken the
effect upon the minds of the jurors which his youth might have
otherwise had, and to which the humanity of the law regards him as
entitled. The burden of proving legal capacity, as of other facts
necessary to make out the defendant's guilt, was upon the
government, and, although the presumption from the defendant's age
may have been such as
Page 150 U. S. 560
to sustain that burden, yet, as the court charged in relation to
the age of accountability, we are not persuaded that the
consequences of want of accuracy ought to be assumed to have been
harmless.
We do not care, however, to dispose of the case upon this
ground, as another and more serious exception was saved. The
contention on the part of the accused was that there was no
premeditation on his part; that he was engaged in a fight, in which
he was struck and thrown down, and in the heat of the struggle
committed the homicide; that he was entitled to make the defense of
excusable homicide, and was guilty at the worst of only
manslaughter in unlawfully and willfully shooting, but without
malice. The court deemed it its duty to charge upon the question of
justifiable homicide, and in doing so to consider and explain two
propositions -- one where the danger to life was actual at the time
of the killing, and the party could not escape from that danger by
the exercise of reasonable means, and the other where the danger
might not have really existed at all, but where the appearance of
danger was such as would induce a reasonable man to believe that
the danger existed. But these two propositions were accompanied by
certain observations which form the subject of the exception under
consideration. The court said:
"Now what is justifiable homicide? When can a man slay another?
When can he sit as a judge passing upon the law, and a jury passing
on the facts, and then as a jury applying the law to those facts,
and finding a verdict, and then acting again as a court and
entering up judgment, and then going out as a marshal or sheriff
and executing that judgment, all at the same time, determining the
law -- determining the facts as a judge, jury, and executioner all
at the same time? This is a mighty power in the hands of the
citizen. It is a mighty power, yet it is to be applied when it
belongs to him because it is the law of necessity, and it is given
to him because it is the law of necessity; it is given to him
because at the time he executes it in a deadly way, his own life is
either actually or really in deadly peril from which he cannot
escape except by the use of that deadly means, or, in your
judgment, taking
Page 150 U. S. 561
into consideration his condition, there was reasonable ground to
believe there was peril."
It will be perceived that the jury are thus told that he who
contends that he slew another to protect his own life from deadly
peril, or because he believed his life in immediate danger, must be
regarded as exercising the deliberation of a judge in passing upon
the law and of a jury in passing upon the facts in arriving at a
determination as to the existence of the danger, and the necessity
of using the particular means to avert it, and, having arrived at
the conclusion that the taking of life is required, as proceeding
to do so as an officer does who is charged by law with the
execution of that solemn duty. And inasmuch as the question in such
cases frequently is not only whether there was actually imminent
peril to the slayer's life, but whether he entertained an honest
belief to that effect upon reasonable grounds, and also whether the
killing was in hot blood, and attributable to the infirmity of
human nature, rather than to malice aforethought, the views
announced by the learned judge would be applicable to manslaughter
as well as excusable homicide, the distinction between which is
often extremely close.
In this we are of opinion there was error. To direct the
attention of the jury to the contemplation of the philosophy of the
mental operations upon which justification or excuse or mitigation
in the taking of human life may be predicated is to hazard the
substitution of abstract conceptions for the actual facts of the
particular case as they appeared to the defendant at the time.
While it may be psychologically true that in every sane act,
with whatever swiftness performed, there is involved the prior
determination to do it, often inappreciably separated in time, yet
when the defense in case of homicide is justification or excuse or
action in hot blood, the question is one of fact, and must be
passed on by the jury in view of all the circumstances developed in
evidence, uninfluenced by metaphysical considerations proceeding
from the court. In view of such considerations, a verdict might be
reached in harmony with the results of scholastic reasoning upon
the nature of things in general
Page 150 U. S. 562
apart from the subject matter, and yet be unjustified by the
case in the concrete which the jury were impaneled to try.
We do not think that the doctrine is practicable which tests the
question whether a defendant exceeded the limits of self-defense or
acted in the heat of passion by the deliberation with which a judge
expounds the law to a jury, or a jury determines the facts, or with
which judgment is entered and carried into execution.
This exception is fatal to the verdict, and the judgment must
be
Reversed and the cause remanded, with a direction to grant a
new trial.
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE BROWN,
dissenting.
I am unable to concur in the conclusions of the Court in this
case, and will state briefly the grounds of my dissent. From the
testimony, an outline of which is given in the opinion, it is
evident that if the testimony of the two Erne boys as to the
circumstances of the homicide is to be believed, the defendant was
guilty of a willful and deliberate murder; if that of the defendant
and the two Marks boys is the truth, then the homicide was probably
only manslaughter. That it was this at least is practically
conceded. His own counsel say: "We believe, from a full review of
this record, that the defendant should have been found guilty of
manslaughter; that is the most of which he is guilty." That the
testimony of the Erne boys was to be believed, rather than that of
the defendant is made certain by the testimony of the disinterested
parties who examined the ground where the homicide took place, and
whose testimony as to the condition of the ground where the body of
the deceased was found, and the tracks from that place to the
fence, renders it morally certain that no such transaction could
have taken place as the defendant testified to, and that his
testimony and that of the Marks boys was false. Of course we have
not here to pass upon this conflicting testimony. I only notice it
that it may be seen that the case did
Page 150 U. S. 563
not turn upon any question of the accountability of the
defendant; that, if the testimony of the Erne boys is to be
believed, the homicide was willful and deliberate, and in revenge
for some opprobrious epithets that had been cast upon him two days
theretofore by the deceased. There was nothing in the transaction,
whether it took place as testified to by the Erne boys or by the
defendant and the Marks boys, to suggest any question of the want
of accountability. The conduct of the defendant was like that of
any other criminal -- arming himself with a pistol, going to meet a
party against whom he has malice, shooting and killing him, and
then endeavoring to make his escape. Strike from the case the
testimony as to age, and there is nothing in the story of the
homicide, whether as told by the witnesses for the prosecution or
those of the defendant, which suggests either youth, immaturity, or
mental unsoundness. How can it be that there was any prejudicial
error in charging the jury that the age at which accountability was
presumed commenced at eleven, rather than at fourteen? By his own
testimony, he was past fourteen. He was thus presumably
accountable. If the court had made no reference to the matter,
confessedly there would have been no error, and a mistake in the
date of the time when accountability commences certainly cannot be
vital when it is admitted that accountability existed. Suppose, in
a case not capital, the court had instructed that the statute of
limitations was ten instead of, as is the fact, three years, and
the testimony showed beyond any dispute -- the defendant himself
admitting it -- that the transaction had taken place within the
prior year, could it be said that there was error working prejudice
to the substantial rights of the defendant, and calling for a
reversal of the judgment? Yet that is precisely this case. Did this
mistake in reference to this irrelevant matter lead the jury to
give more credence to the testimony of the Erne boys; to disbelieve
the story told by the defendant and his associates? Did it
strengthen the testimony of the disinterested parties as to the
condition in which they found the place of the homicide and the
tracks between that and the fence? Did it in any way change the
character of the transaction as presented to
Page 150 U. S. 564
the consideration of the jury? Clearly not, but this Court seems
to think that the defendant may have looked boyish and been
immature, and that this fact should have been called to the
attention of the jury. Yet if it were true, the jury saw and knew
it. So far as the record throws any light upon his appearance, it
makes against the idea of boyishness and immaturity. The deceased
was a boy eighteen years of age, and his father testifies that the
defendant was about his height, and much heavier, although he
admits that his own boy was short of statute. When he was arrested
by the marshal, the latter accosted him thus: "Here, young man; I
want you." Of course this testimony amounts to but little, but so
far as it goes, it makes against the idea that one who was in
appearance and in fact a mere boy was being tried for crime whose
enormity he did not comprehend and for which he was not fully
accountable. It tends to strengthen that which the testimony of the
prosecution, evidently entitled to credence, discloses -- to-wit,
deliberate action by one who knew fully what he was about and who
was fully responsible therefor. His counsel asked no instruction in
respect to his youth or immaturity, and the general rule is that if
a party asks no instructions upon a given matter, it cannot be held
that the court erred in giving none thereon. It seems to me strange
to assume that while the jury saw the defendant, saw how mature he
was, and we only guess at it, he may have been a mere boy in fact
and appearance; that the court should have given an instruction in
respect thereto, though none was asked, and that, while he admits
that he had arrived at an age of accountability, a mistake in the
charge of the court as to the time at which accountability
commences is sufficient to work a reversal of the judgment.
With reference to the other matter which in the judgment of the
Court requires a reversal, it is only another and forcible
illustration of that disregard of our rules and the general
practice of appellate courts in regard to bills of exception which
I had occasion to comment upon in the opinion I have just filed in
the case of
Hicks v. United States, ante, 150 U. S. 442.
Here is over a page of the court's charge, which is challenged
Page 150 U. S. 565
by a general exception without any specification of the matter
of law which is objected to. Singularly enough, the matter of law
which is the substantial feature of this challenged portion of the
charge is not deemed erroneous, is not noticed by this Court, but
the error which is found is in language of mere illustration in an
introductory question. That matter is the law of self-defense, the
right to take the life of an assailant to preserve one's own life,
and the law stated is that when there is real danger, the party
assailed may take the life of his assailant. No question is made
but that this matter of law was stated correctly. It is, however,
held that an error was committed in a question which led up to this
statement of the rule of law. The court asks,
"When can a man slay another? When can he sit as a judge passing
upon the law and a jury passing on the facts, and then as a jury
applying the law to those facts and finding a verdict, and then
acting again as the court and entering up judgment, and then going
out as a marshal or sheriff and executing that judgment, all at the
same time, determining the law, determining the facts as judge,
jury, and executioner, all at the same time?"
And because of this question, stated as a preliminary to the
laying down of the rule of law, the judgment is set aside. There is
in this no charge that there must be a period of long deliberation,
such as that which sometimes characterizes proceedings in a court
of justice. On the contrary, the plain implication is of speed, for
the language is "determining the law, determining the facts as
judge, jury, and executioner, all at the same time" -- an
instantaneous act. It is psychologically true that a party, in
exercising the right of self-defense, determines what the law is
which gives him a right to act and whether the case before him is
within that law, and thus is judge and jury, and then, as marshal
or sheriff, carries that determination into immediate execution. It
may be conceded that the mental action may be rapid --
instantaneous, as it were; that there may be no distinct separation
in the thought of the party as to the respective functions of judge
and jury, no formal presentation of the law of self-defense with
all its limitations; yet of necessity he determines that the
situation before him is one which, under
Page 150 U. S. 566
the law as he understands it, gives him a right to take the life
of his assailant. He is judge, jury, and sheriff. Indeed, this is
not denied, but it is thought that the language used by the court
is too metaphysical. In other words the court has stated what is
strictly and accurately true. Yet because it is abstract and
metaphysical, this Court will presume that the jury did not
understand and might be misled by it. When did it become a rule of
law that a court of error should presume that the jury in a trial
court were ignorant? When ever before was it heard that a verdict
was to be set aside by an appellate court on the ground that a
juror may have been misled by an instruction of the trial court
when that instruction, it is conceded, is strictly accurate and
applicable to the case?
For these reasons I dissent, and I am authorized to say that MR.
JUSTICE BROWN concurs with me in this dissent.
