The action of the trial court upon an application for a
continuance is purely a matter of discretion, not subject to review
by this Court unless it clearly appears that the discretion has
been abused.
The court committed no error in charging that the fact that the
man killed was a white man might be shown by the statement of the
defendant taken in connection with other facts and
circumstances.
It is no ground for reversal that the court omitted to give
instructions which were not requested by the defendant.
The plaintiff in error, Webber Isaacs, a Cherokee Indian, was
indicted, with two others, for the murder of a white man in the
Indian country. There were four counts in the indictment, two
charging that the murdered man was Mike P. Cushing, and two that he
was an unknown white man. No witness who testified saw the act of
killing, but it was shown
Page 159 U. S. 488
by the testimony of several witnesses that a peddler, about
sixty years of age, with gray whiskers and riding a gray pony, was
seen going towards Isaacs' house several days before the body was
found. Some days thereafter, within a mile of Isaacs' house and off
from the public road, the body of a horse corresponding to the one
the peddler was riding was found. The appearances indicated that he
had been shot. Near the horse were the remains of a man, with the
clothing and flesh nearly consumed by fire. The ground indicated
that the body had been dragged from where the horse lay to where it
was found, the feet having tied about them what appeared to be a
portion of the bridle, which was found cut up. There was evidence
that the remains were those of a white man. Under his chin were
some gray whiskers unconsumed by the fire. Near the body were found
some bills and letters identified as belonging to Cushing. The head
was crushed, and there were holes under the arm. Shortly after the
killing, several witnesses saw defendant with money.
Defendant admitted that a peddler was at his house on the day
that Cushing was last seen alive, and said that he rode away with
one Jack Chewey, who told him the next day that he had killed the
peddler. He admitted that he had never asked Chewey any questions
as to when, how, or where he had killed him, and that he had never
told any person that Chewey had told him of the killing. Five
witnesses also swore that defendant told them that he and Chewey
had killed a white peddler at a time corresponding with the
disappearance of Cushing.
The jury found the defendant guilty of murder as charged in the
first count of the indictment, and the court sentenced him to be
hanged. Whereupon he sued out this writ of error.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 159 U. S. 489
In the absence of an oral argument and of a brief by plaintiff
in error, we are compelled to dispose of this case upon the record
and the brief of the Attorney General.
1. The first error assigned is to the action of the court in
overruling a motion for a continuance, requested because of the
absence of a material witness for the defense.
That the action of the trial court upon an application for a
continuance is purely a matter of discretion, and not subject to
review by this Court unless it be clearly shown that such
discretion has been abused, is settled by too many authorities to
be now open to question.
Woods v. Young,
4 Cranch 237;
Barrow v. Hill,
13 How. 54;
Crumpton v. United States, 138 U.
S. 361;
Cox v. Hart, 145 U.
S. 376;
Earnshaw v. United States, 146 U. S.
60,
146 U. S. 68;
Means v. Bank, of Randall, 146 U.
S. 620. It appears that forty-nine days before the case
was called for trial an application was made and granted to have
the witness whose testimony was desired, summoned at the expense of
the government, the affidavit showing that she was within the
jurisdiction of the court. It was not shown that any diligence was
used to procure the attendance of the witness, or that any
attachment was asked for, although the trial continued for several
days, or why the subpoena was not served. The affidavit did not
show that the defendant could not make the same proof by other
witnesses, or that he could not safely go to trial without the
testimony of the witness in question. In fact, all that the
affidavit showed that the witness could prove was established by
other testimony, including that of the defendant himself. There was
clearly no abuse of discretion.
2. The second assignment was to the charge of the court "that
the fact that the man killed was a white man might be shown by the
statement of the defendant in establishing the
corpus
delicti."
The charge of the court is not accurately set out in the
assignment, but was in substance that the fact that Cushing was a
white man might be shown by the testimony of the defendant as well
as by any other means, or that it might be shown by that in
connection with other facts and circumstances.
Page 159 U. S. 490
We do not understand that any inference can properly be drawn
from this that the court intended to charge that the
corpus
delicti might be shown by the mere statement of the defendant,
but only that his statement, taken in connection with other facts,
might be used to show that the murdered man was a white man. If any
inference could be drawn to the effect that the court intended to
charge that the
corpus delicti might be proved by the
confession of the defendant, it is completely removed by the
further charge that
"that state of case [namely, the death of Cushing by violence
inflicted criminally] must be proven by circumstances, or by
positive proof, one or the other, before the declarations or
admissions or confessions of the defendant can be taken as
sufficient to warrant a jury in convicting. Now do not make any
mistake about this proposition -- the proposition called the
'
corpus delicti.' The fact that a crime was committed, or
the fact that the man charged in the indictment, either as Mike P.
Cushing or an unknown white man, was murdered, must be proven by
evidence outside of the confession of the defendant,"
and that "whenever that State of case is established, then you
may take the declarations of the defendant as tending to show his
guilt."
As there was abundant evidence in the case, outside of
defendant's confession, not only that the man had been murdered,
but considerable evidence that he was a white man, we think there
was no error committed in the charge that the fact that he was a
white man might be shown by the testimony of the defendant, as well
as by other means, or by that in connection with other facts and
circumstances. The fact that the murdered man was a white man had
no bearing upon the question of the
corpus delicti, or of
the fact that the defendant murdered him, and bore only upon the
jurisdiction of the court.
3. The next assignment is to the charge
"that the
corpus delicti could be established by
circumstantial testimony, without saying that this circumstantial
evidence should be such as creates cogent, irresistible grounds of
presumption."
Without any request on the part of the defendant to add the
qualification
Page 159 U. S. 491
suggested, there was no error in the charge actually given. It
is no ground for reversal that the court omitted to give
instructions, where they were not requested by the defendant. It is
sufficient that the court give no erroneous instructions.
Pennock v.
Dialogue, 2 Pet. 1,
27 U. S. 15;
Texas & Pacific Railway v. Volk, 151 U. S.
73,
151 U. S.
78.
Beyond this, however, any possible misapprehension upon this
point would be removed by the charge that the law says that:
"If the propositions I have named to you make up the crime, and
the further proposition that brings the crime home to this
defendant, are proven beyond a reasonable doubt in the case, that
your duty in the premises is imperative; it is to find a verdict of
guilty of murder against the defendant. If they are not proven in
that way, either one of them -- that is, to such a degree of
certainty that they come under that legal definition of proof
beyond a reasonable doubt -- then your duty will be to acquit the
defendant."
As the court charged the jury repeatedly that the crime, and
every element thereof, must be made out to their satisfaction
beyond a reasonable doubt, it is impossible that they could have
been misled by the omission of the qualification suggested.
The remaining assignments are either covered by those already
considered or are so obviously frivolous that no discussion of them
is necessary. The judgment of the court below is therefore
Affirmed.
