Courts of justice are invested with authority to discharge a
jury from giving any verdict whenever in their opinion, taking all
the circumstances into consideration, there is a manifest necessity
for the act or the ends of public justice would otherwise be
defeated, and to order a trial by another jury, and a defendant is
not thereby twice put in jeopardy within the meaning of the Fifth
Amendment to the Constitution of the United States.
Sundry errors in the charge of the court below commented on, and
Gourko v. United states, 153 U. S. 183
approved and applied to the issues in this case,
viz.:
(1) 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.
(2) 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.
In the District Court of the United States for the Western
District of Arkansas, on November 23, 1893, a jury was sworn to try
the issue formed between the United States and Thomas Thompson
under an indictment wherein said Thompson was charged with the
murder of one Charles Hermes, and to which the accused pleaded not
guilty.
After the case had been opened by counsel for the government and
the defendant, respectively, and after Jacob Hermes, a witness for
the government, had been called and examined in chief, the judge
stated that it had come to his knowledge that one of the jurors was
disqualified to sit on account of having been a member of the grand
jury that returned the indictment in the case. The defendant, by
his counsel, objected
Page 155 U. S. 272
to proceeding further in the trial of the cause with the said
juror on account of his incompetency as aforesaid, whereupon the
court ordered the discharge of the jury, and that another jury be
called, to which action of the court the defendant, by his counsel
at the time excepted.
On November 27, 1893, the defendant filed a plea of former
jeopardy, and also a motion for a jury from the body of the
district, and it appearing from an examination, in the presence of
the defendant that a number of the regular panel of jurors were
disqualified because of opinions formed after having heard part of
the evidence, the court ordered the marshal to summon from the
bystanders twenty-eight legal voters of the Western District of
Arkansas, to be used as talesmen in making up a jury for the trial
of the case. On December 1, a motion was filed on behalf of the
defendant to quash that part of the panel of jurors consisting of
twenty-eight men summoned from bystanders, which motion was
overruled, and the petition of the defendant asking for a jury from
the body of the district, drawn in the regular manner from the jury
box by the jury commissioners, was refused. The government's
attorney then moved that a jury be called for the trial. The
defendant objected to the twelve men being called who had been
theretofore impaneled for the trial of the cause, which objection
the court sustained, and the clerk was ordered to omit in the call
the names of said jurors.
Among the jurors called by the clerk were Wilson G. Gray,
William M. Perkins, and Isaac B. Sloan, who were members of the
regular panel for the present term of the court, and whose names
were on the list of jurors served upon defendant at the beginning
of the term, and before the first jury in this cause was impaneled,
and when the first jury was impaneled, these three jurors were by
the defendant peremptorily challenged. Their names were not upon
the certified list of jurors last served upon the defendant after
the first jury had been discharged. The challenge for cause made by
defendant to these three jurors was overruled, whereupon the
defendant peremptorily challenged them. The defendant likewise
filed a written challenge for cause to the twenty-eight men
called
Page 155 U. S. 273
as talesmen for the reasons that they did not belong to the
regular panel of jurors, that they were not from the body of the
district, but were all residents of the City of Fort Smith, in the
immediate neighborhood of the place of trial. This challenge was
overruled.
The jury was thereupon sworn, and the trial proceeded with,
resulting in a verdict, under the instructions of the court, for
the government in the issue formed by the plea of former jeopardy,
and in a verdict that the defendant was guilty of murder as charged
in the indictment.
Motions for a new trial and in arrest of judgment were
overruled, and sentence of death was pronounced against the
defendant.
Upon errors alleged in the proceedings of the court, and in the
charge to the jury, a writ of error was sued out to this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The record discloses that while the trial was proceeding, a jury
having been sworn and a witness examined, the fact that one of the
jury was disqualified by having been a member of the grand jury
that found the indictment became known to the court. Thereupon the
court, without the consent of the defendant and under exception,
discharged the jury, and directed that another jury should be
called. The defendant, by his counsel, pleaded that he had been
once in jeopardy upon and for the same charge and offense for which
he now stood charged. The court permitted this plea to be filed,
and submitted the question to the jury, with instructions to find
the issue in favor of the government. Such a verdict was
accordingly rendered, and the cause was then disposed of
Page 155 U. S. 274
under the plea of not guilty, and resulted in a verdict of
guilty under the indictment.
The defendant now seeks, in one of his assignments of error, the
benefit of the constitutional provision that no person shall be
subject for the same offense to be twice put in jeopardy of life
and limb.
As the matter of the plea
puis darrein continuance,
setting out the previous discharge of a jury after having been
sworn, and the plea of not guilty, were not inconsistent with each
other, it accorded with the rules of criminal pleading that they
might stand together, though of course it was necessary that the
issue under the first plea should be disposed of before the cause
was disposed of under the plea of the guilty.
Commonwealth v.
Merrill, 8 Allen 545; 1 Bishop on Criminal Procedure ยง
752.
As to the question raised by the plea of former jeopardy, it is
sufficiently answered by citing
United
States v. Perez, 9 Wheat. 579;
Simmons v.
United States, 142 U. S. 148, and
Logan v. United States, 144 U. S. 263.
Those cases clearly establish the law of this Court that courts of
justice are invested with the authority to discharge a jury from
giving any verdict whenever in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for
the act or the ends of public justice would otherwise be defeated,
and to order a trial by another jury, and that the defendant is not
thereby twice put in jeopardy within the meaning of the Fifth
Amendment to the Constitution of the United States.
The evidence in the case substantially disclosed the following
facts: the defendant, Thompson, was an Indian boy about seventeen
years of age, and lived with Sam Haynes, a Creek Indian, who had a
farm near Okmulgee, in the Creek Nation. The deceased, Charles
Hermes, lived with his father on land rented from Haynes, and
distant about half a mile from the house of the latter. There was
testimony tending to show ill feeling on the part of Hermes and his
sons towards this Indian boy, and that they had threatened to
injure him if he
Page 155 U. S. 275
came about where they were. Thompson could not speak or
understand the English language, but he had been told by Haynes and
another witness that old man Hermes had claimed that he, Thompson,
had been abusing and killing his hogs, and that if he "came acting
the monkey around him any more, he would chop his head open."
In the afternoon of June 8, 1893, Mrs. Haynes directed the boy
to take a bundle to Mrs. Checotale's, who lived two or three miles
away. The boy caught a horse, got on it without a saddle, took the
bundle that Mrs. Haynes gave him, and went off on his errand. Mrs.
Haynes testified that he had no arms of any kind when he left her
house, and that he appeared in a good humor with everybody at that
time. The road to Checotale's ran by a field where the deceased,
his father, and brother were working plowing corn. There was
testimony on the part of Thompson tending to show that as he rode
along past the field, the old man and the deceased began quarreling
with him; that Thompson saw that they were angry with him, but
could not understand much that was said to him, although he could
tell that they were talking about hogs. Thompson says that he
remembered the threats against him they had made to Haynes and
Checotale, and thought they were going to hurt him. He further
states that he rode on to Checotale's, where he left the bundle;
that he got to thinking about what Sam Haynes had told him as to
the threats that Hermes had made, and as there was no other road
for him to return home by except the one alongside of the field, he
thought it was best for him to arm himself, so that he could make a
defense in case he was attacked; that he went by Amos Gray's house,
and there armed himself with a Winchester rifle belonging to Gray.
The defendant further testified that after he got the gun, he went
back by the road, and as he got opposite where the men were
plowing, the boys were near the fence, and the old man was behind;
that the boys called at him, and said something about a gun, and
the deceased started towards a gun that was standing in the corner
of the fence, and that, thinking they intended to kill him, he drew
his gun, and fired at
Page 155 U. S. 276
the deceased, and then ran away on his horse, pursued by the old
man, who afterwards shot at him. These particulars of the
transaction were principally testified to by Thompson himself, but
he was corroborated to some extent by William Baxter and James
Gregory, who testified that they visited the field where was the
body of the deceased, and that Hermes, the father, described the
affair to them, and, as so told, the facts differed but little from
Thompson's version.
In this state of facts, or, at all events, with evidence tending
to show such, the court instructed the jury at great length in
respect to the law of the case. Exception was taken to the charge
of the court as a whole because it was "prolix, confusing,
abstract, argumentative, and misleading," and this exception is the
subject of one of the assignments of error. But we do not need to
consider this aspect of the case, as the record discloses errors in
vital portions of the charge, and specifically excepted to, which
constrain us to reverse the judgment and direct a new trial.
In instructing the jury as to the right of self-defense, the
learned judge said:
"It is for you to say whether at the time of the killing of
Charles Hermes by this defendant, this defendant was doing what he
had a right to do. If he was not, notwithstanding Charles Hermes
might have made a violent demonstration that was then and there
imminent, then and there impending, then and there hanging over his
head, and that he could not avoid it except by killing him; if his
conduct wrongfully, illegally, and improperly brought into
existence that condition, then he was not in an attitude where, in
the language of the law, he was in the lawful pursuit of his
business."
And again:
"Now in this connection, we have a maxim of the law which says
to us that notwithstanding the deceased at the time of the killing
may be doing that which indicates an actual, real, and deadly
design, if he by his action who seeks to invoke the right of
self-defense brought into existence that act upon the part of the
deceased at that time by his wrongful act -- his wrongful action
did it -- he is cut off from the law of self-defense, no matter
what may have been the conduct of the deceased at that time. "
Page 155 U. S. 277
It is not easy to understand what the learned judge meant by
those portions of these instructions in which he leaves it to the
jury to say whether the defendant was "doing what he had a right to
do," and whether the defendant brought into existence the act of
the deceased, in threatening to attack the defendant, "by his,
defendant's, wrongful act." Probably what was here adverted to was
the conduct of the deceased in returning home by the same route in
which he had passed the accused when going to Checotale's, and the
implication seems to be that the accused was doing wrong, and was
guilty of a wrongful act, in so doing. The only evidence on that
subject was that of the defendant himself that he had no other mode
of returning home except by that road, because of swamps on the
other side of the road, and there was no evidence to the
contrary.
The learned judge, in these and subsequent instructions, seems
to confuse the conduct of the defendant in returning home by the
only convenient road with a supposed return to the scene of a
previous quarrel for the purpose of renewing it. Thus, he further
instructed the jury that
"if it be true that Charles Hermes, at the time of the killing,
was actually and really or apparently in the act of executing a
deadly design, or so near in the execution of it that the defendant
could not avoid it, and that it was brought into existence by his
going to that place where Charles Hermes was with the purpose of
provoking a difficulty, or with the intention of having an affray,
he is cut off from the law of self-defense."
And again:
"You are to look to the evidence to see whether the defendant
brought that state of case into existence, to see whether or not,
in consequence of a conception on his part of a state of grudge or
ill will or any hard feelings that existed between the parties,
that he went off and armed himself for the purpose of making an
attack on Hermes, or any of the party whom the government offered
as witnesses, this law of self-defense cannot avail him. Of course
the law of self-defense gives him the right to arm himself for the
purpose of defending himself so long as he is in the right, but if
he has a conception that deadly danger may come upon him, but he
is
Page 155 U. S. 278
away from it, so he can avoid it, his duty is to stay away from
it and avoid it, because he has no right to go to the place where
the slain person is, with a deadly weapon, for the purpose of
provoking a difficulty, or with the intent of having an
affray."
These instructions could, and naturally would, be understood by
the jury as directing them that the accused lost his right of
self-defense by returning home by the road that passed by the place
where the deceased was, and that they should find that the fact
that he had armed himself and returned by that road was evidence
from which they should infer that he had gone off and armed himself
and returned for the purpose of provoking a difficulty. Certainly
the mere fact that the accused used the same road in returning that
he had used in going from home would not warrant the inference that
his return was with the purpose of provoking an affray,
particularly as there was evidence that this road was the proper
and convenient one. Nor did the fact that the defendant, in view of
the threats that had been made against him, armed himself, justify
the jury in inferring that this was with the purpose of attacking
the deceased, and not of defending himself, especially in view of
the testimony that the purpose of the defendant in arming himself
was for self-defense.
We had occasion to correct a similar error in the recent case of
Gourko v. United States, 153 U. S. 183.
That was a case where the deceased had previously uttered threats
against the defendant, and there had been a recent
rencontre at the post office. The parties then separated,
and the defendant armed himself, and subsequently, when the parties
again encountered each other, the defendant shot and killed the
deceased. The court instructed the jury that in those
circumstances, there was no right of self-defense, and that there
was nothing to reduce the offense from that of murder to
manslaughter.
In discussing the question, this Court, by MR. JUSTICE HARLAN,
said:
"Assuming for the purposes of the present inquiry that the
defendant was not entitled to an acquittal as having acted
Page 155 U. S. 279
in self-defense, the vital question was as to the effect to be
given to the fact that he armed himself with a deadly weapon after
the angry meeting with Carbo in the vicinity of the post office. If
he armed himself for the purpose of pursuing his adversary, or with
the intention of putting himself in the way of his adversary so as
to obtain an opportunity to kill him, then he was guilty of murder.
But if, in view of what had occurred near the post office, the
defendant had reasonable grounds to believe, and in fact believed,
that the deceased intended to take his life or to inflict upon him
great bodily harm, and, so believing, armed himself solely for
necessary self-defense in the event of his being pursued and
attacked, and if the circumstances on the occasion of the meeting
at or near the saloon were such as by themselves made a case of
manslaughter, then the defendant's arming himself after the
difficulty near the post office did not in itself have the effect
to convert his crime into that of murder."
"Stated in another form: although the defendant may not have
been justified on the occasion and in the particular circumstances
of the difficulty at the billiard saloon in believing that the
taking of his adversary's life was then and there necessary to save
his own life, or to protect himself from serious bodily harm,
nevertheless the jury were not authorized to find him guilty of
murder because of his having deliberately armed himself, provided
he rightfully armed himself for purposes simply of self-defense,
and if, independently of the fact of arming himself, the case,
tested by what occurred on the occasion of the killing, was one of
manslaughter only. The court in effect said, or the jury may not
unreasonably have understood the judge as declaring, that
preparation by arming, although for self-defense only, could not be
followed in any case by manslaughter if the killing after such
arming was not in fact in necessary self-defense. Such we
understand to be the meaning of the charge. In our opinion, the
court erred in so charging the jury. If the accused was justified
in the eye of the law in arming himself for self-defense, and if,
without seeking, but on meeting, his adversary on a subsequent
occasion, he killed him not in necessary self-defense,
Page 155 U. S. 280
then his crime was that of manslaughter or murder, as the
circumstances on the occasion of the killing made it the one or the
occasion of guilty of manslaughter, looking alone at those
circumstances, he could not be found guilty of murder by reason of
his having previously armed himself solely for self-defense."
We think there was also error in that portion of the charge
wherein the court instructed the jury as to the effect which they
should give to the evidence on the subject of previous threats
uttered against the defendant by Hermes and his sons. The learned
judge seems to have regarded such evidence not merely as not
extenuating or excusing the act of the defendant, but as evidence
from which the jury might infer special spite, special ill will, on
the part of the defendant. The language of the learned judge was as
follows:
"Previous threats fill a certain place in every case where they
are brought out in the evidence. If at the time of the killing, the
party is doing nothing which indicates a deadly design or a design
to do great bodily mischief -- if he is doing nothing, I say, of
that kind -- then previous threats cannot be considered by the
jury. If they are satisfied from the law and the testimony that the
deceased was not doing anything that amounted to a deadly attack,
or there is no question in their minds as to what the attitude of
the deceased was, previous threats cannot be considered by them;
they cannot enter into their consideration of the case by the way
of justifying any act that resulted in the death of Charles Hermes
from the act of defendant; they cannot be considered, I say,
because you cannot kill a man because of previous threats. You
cannot weigh in the balance a human life against a threat. There is
no right of that kind in law. Threats are only admitted as
illustrative of another condition that exists in the case. If the
party at the time of killing who is killed is doing that which
indicates a purpose to do great bodily harm, to kill, or is about
to do it, so near doing it, and goes so far, that it can be seen
from the nature of the act what his purpose is, then, for the
purpose of enabling you to more clearly see the situation of the
parties, you can take into consideration the
Page 155 U. S. 281
threats made by him. But if there is an absence in the case of
that which indicates a deadly design, a design to do great bodily
harm, really or apparently, threats cannot be considered in
connection with the asserted right of a defendant that he can avail
himself of the right of self-defense. You cannot do that. But if
threats are made, and there is an absence from the case of the
conditions I have given you where you can use them as evidence,
you can only use them and consider them for the purpose of
showing the existence of special spite or ill will or animosity on
the part of the defendant."
And again:
"If this defendant killed this party, Charles Hermes, because
the old man, the father of Charles Hermes, had threatened him with
violence, or threatened to have something done to him because of
his belief that he had done something with his hogs, or killed
them, and made threats, that is no defense, that is no mitigation,
but that is evidence of malice aforethought; it is evidence of
premeditation; it is evidence of deliberation of a deliberately
formed design to kill, because of special spite, because of a
grudge, because of ill will, because of animosity that existed upon
the part of this defendant towards these people in the field."
While it is no doubt true that previous threats will not, in all
circumstances, justify or perhaps even extenuate the act of the
party threatened in killing the person who uttered the threats, yet
it by no means follows that such threats, signifying ill will and
hostility on the part of the deceased, can be used by the jury as
indicating a similar state of feeling on the part of the defendant.
Such an instruction was not only misleading in itself, but it was
erroneous in the present case for the further reason that it
omitted all reference to the alleged conduct of the deceased at the
time of the killing, which went to show an intention then and there
to carry out the previous threats.
The instructions which have thus far been the subject of our
criticism were mainly applicable to the contention that the
defendant acted in self-defense, but they also must have been
understood by the jury as extending to the other proposition
Page 155 U. S. 282
that the defendant's act constituted the crime of manslaughter,
and not of murder. The charge shows that the instructions of the
learned judge on these two distinct defenses were so blended as to
warrant the jury in believing that such instructions were
applicable to both grounds of defense.
Whether this be a just view or not, there were distinct
instructions given as to the contention that the act of killing in
this case was manslaughter, and not murder, which we think cannot
be sustained. A portion of such instructions was as follows:
"Now I have been requested to charge you upon the subject of
manslaughter. Manslaughter is defined by the law of the United
States to be the wrongful killing of a human being, done willfully
and in the absence of malice aforethought. There must be out of the
case that which shows the existence of this distinguishing trait of
murder to find the existence of a state of case that authorizes a
mitigation of the offense from murder to manslaughter. It is an
unlawful and willful killing, but a killing in such a way as that
the conduct of the deceased, Hermes, in this case, at the time he
was killed, was not of a character to authorize him to shoot, but
that the defendant could so far have the benefit of that conduct
provocative in its nature as that he could ask you to mitigate his
crime, if crime exists here, from murder to manslaughter. Let us
see what is meant by that. It cannot grow out of any base
conception of fear. It cannot grow out of a state of case where
there is a killing because of threats previously made, because of
that which evidences special spite or ill will, for if the killing
is done on that ground, and if it is shown by the threats, and the
previous preparation of the defendant, or the fact of his arming
himself, and going back to the field where they were at work, and
while there he shot Charles Hermes to death, it cannot be evidence
of that condition; but at the time of the killing, there must have
been that in the conduct of Charles Hermes in the shape of acts
done by him that were so far provocative as to then and there
inflame the mind of the deceased [defendant] to authorize you to
say that it was so inflamed -- in such an inflamed condition that
the defendant did not act
Page 155 U. S. 283
with premeditation; that he did not act from a previously formed
design to kill, but that the purpose to kill sprang into existence
upon the impulse of the moment because of the provocative conduct
of Charles Hermes at the time of the killing -- that would be a
state of manslaughter. . . . The law says that the previous
selection, preparation, and subsequent use of a deadly weapon shows
that there was a purpose to kill contemplated before that affray
existed, and whenever that exists, when it is done unlawfully and
improperly, so that there is no law of self-defense in it, the fact
that they may have been in an actual affray with hands or fists
would not reduce the grade of the crime to manslaughter."
The error here is in the assumption that the act of the
defendant in arming himself showed a purpose to kill formed before
the actual affray. This was the same error that we found in the
instructions regarding the right of self-defense, and brings the
case within the case of
Gourko v. United States,
previously cited, and the language of which we need not repeat.
These views call for a reversal of the judgment, and it is
therefore unnecessary to consider the assignments that allege
errors in the selection of the jury.
The judgment is reversed, and the cause remanded for a new
trial.