When a person indicted for the commission of murder offers
himself at the trial as a witness on his own behalf under the
provisions of the Act of March 16, 1878, c. 37, 20 Stat. 30, the
policy of that enactment should not be defeated by hostile
intimations of the trial judge.
Hicks v. United States,
150 U. S. 442,
affirmed.
The defendant in this case having offered himself as a witness
in his own behalf, and having testified to circumstances which
tended to show that the killing was clone in self-defense, the
court charged the jury:
"You must have something more tangible, more real, more certain,
than that which is a simple declaration of the party who slays,
made in your presence by him as a witness, when he is confronted
with a charge of murder. All men would say that."
Held that this was reversible error.
Other statements made by the court to the jury are held to
seriously trench on that untrammeled determination of the facts by
a jury to which parties accused of the commission of crime are
entitled.
What is or what is not an overt demonstration of violence
sufficient to justify a resistance which ends in the death of the
party making the demonstration varies with the circumstances, and
it is for the jury, and not for the judge, passing upon the weight
and effect of the evidence, to determine whether the circumstances
justified instant action because of reasonable apprehension of
danger.
Page 160 U. S. 204
Where the charge of the trial judge takes the form of animated
argument, the liability is great that the propositions of law may
become interrupted by digression and be so intermingled with
inferences springing from forensic ardor that the jury will be left
without proper instructions, their province of dealing with the
facts invaded, and errors intervene.
John Allison, some 20 years old, was indicted for the murder of
his father, William Allison, on the 5th day of January, 1895 at the
Cherokee Nation in the Indian country in the Western District of
Arkansas, found guilty by a jury, under the instructions of the
court, and sentenced to be hanged, whereupon he sued out this writ
of error.
The evidence tended to show that the Allisons resided, up to the
year 1893, in the State of Washington; that the parents had been
divorced; that the father had repeatedly threatened the lives of
the members of his family, and for an assault upon one of his sons
and his son-in-law, by shooting at them with a pistol, had been
sent to the penitentiary for a year, and that thereupon the family
left the State of Washington, and came to the Indian country. In
about a year, the father appeared, first at Hot Springs, Arkansas,
where one daughter had located, and then in the neighborhood of the
other members of the family in the Indian country, and at once
began threatening the lives of the entire family, and particularly
that of his son John. A great variety of vindictive threats by the
deceased in Washington at Hot Springs, and in the Indian country
was testified to.
Evidence was also adduced that on one occasion he came to the
house where the mother and her children were living and demanded to
see the children, who (except John, and one whom he had seen) were
not at home, and he then wished to see their mother, who objected
to meeting him; that he persisted, whereupon his son John, who had
a gun in his hand, told him he must leave, and the father dared
John to come out, and he would fight him outside, but John answered
that he did not want any trouble with him, only wanted him to stay
away from there, and the deceased replied, "God damn you, I will go
off and get a gun, and kill the last damned one of you;" that he
subsequently told his son-in-law to tell John Allison
Page 160 U. S. 205
"that he would blow his God damned brains out the first time he
seen him; told him to tell him he would kill his mother and the
entire family;" that the day after this occurrence John Allison and
his mother made an affidavit to get a peace warrant for William
Allison, and on that occasion John told the prosecuting attorney
that the old man threatened his life, and he thought he was in
danger, and asked him if he killed the old man what would be done
with him, and he replied that
"if the old man came to his house, and raised a racket, and
tried to carry out his threats, that he told me he had made on him,
I told him he would be justified in doing it,"
but that he must not go "hunting the old man up, and trying to
kill him," and that John said, "I will not bother him; if he will
let me alone, I will let him alone," and that this was five or six
days before the killing. The evidence further tended to show that
the deceased had been in the habit of carrying a pistol; that he
stated that he had one; that on New Year's day, he threatened one
of the witnesses with that weapon, and another witness testified to
catching a glimpse of it once when he put his hand around to his
hip pocket; but that he had no pistol on him when he was killed.
The deceased was staying at the house of one Farris, and a witness
testified in rebuttal to conversing with John when he was "warming"
on one occasion at the barn -- presumably Farris� barn -- and
asking him why he did not go up to the house, and he said he did
not want to go up there; that he was afraid he and his father would
have some trouble; that he was afraid his father would hurt him,
and that he was going to kill him just as quick as he caught him
away from the house.
As to the circumstances immediately surrounding the homicide,
the defendant testified that he and a man by the name of Rucker had
killed a deer near Rucker's the day before, and that he had
promised Rucker to come back the next day to hunt for others, and
was riding by Farris' place, which was on the road to Rucker's,
with his gun in his hand on that errand on the morning of January
5th when he saw a person whom he took to be his brother Jasper up
at Farris' house;
Page 160 U. S. 206
that this person turned out to be Farris with his brother's coat
on, but he stopped at the stable, thinking that his brother would
come down that way, as he had learned from his sister that his
brother was to be at the place at that time for the purpose of
removing some household goods; that he did not go up to the house,
because he did not want to meet his father; that shortly after he
arrived at the barn, his father came through the gate, and he
stepped to one side, to let him go into the barn if he wished to,
but deceased did not go towards the door, came straight towards
him, and when he got a few feet from him said, "You have got it,
have you?" and threw his hand back as if he was going to get a
pistol -- "made a demonstration that way" -- and that this
demonstration and the threats he had made led defendant to believe
that he was going to draw a pistol, and he fired; that he fired
three shots, but none after the deceased fell. Defendant was
corroborated by Rucker and others in many particulars, but
contradicted by the government's witnesses in respect of firing
after his father was down; they testifying that he fell at the
first shot.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the court.
It is claimed on behalf of defendant that the homicide was
excusable, because committed in self-defense, in that, his life
having been repeatedly threatened by deceased, when he saw him on
this occasion moving his hand as if to take a pistol from his hip
pocket, he believed, and as a prudent man might reasonably have
believed at that time and under those circumstances, that he was in
imminent and deadly peril which could only be averted by the course
he pursued or that, at the most, he could only be found guilty of
manslaughter for acting under an unreasonable access of fear, but
without malice.
The threats were conceded, and there was evidence that
Page 160 U. S. 207
the deceased was in the habit of carrying a pistol; that he had
recently carried one in his hip pocket; that he had sent word to
defendant that he should kill him on sight; that defendant had
started on a hunting expedition that morning, and that his stopping
at Farris' place was accidental; but the facts that he at first
stepped away from his father, and that the latter advanced on him
and made the threatening demonstration as if to draw a pistol,
which the defendant knew he was accustomed to have upon him,
apparently depended on defendant's testimony alone. The question
for the jury to determine from all the facts and circumstances
adduced in evidence was the reasonableness of the belief or fear of
the existence of such peril of death or great bodily harm as would
excuse the killing. And it was for the jury to test the credibility
of the defendant as a witness, giving his testimony such weight
under all the circumstances as they thought it entitled to, as in
the instance of other witnesses, uninfluenced by instructions which
might operate to strip him of the competency accorded by the
law.
We repeat what was said by MR. JUSTICE SHIRAS, speaking for the
Court, in
Hicks v. United States, 150 U.
S. 442,
150 U. S.
452:
"It is not unusual to warn juries that they should be careful in
giving effect to the testimony of accomplices, and perhaps a judge
cannot be considered as going out of his province in giving similar
caution as to the testimony of the accused person. Still it must be
remembered that men may testify truthfully although their lives
hang in the balance, and that the law, in its wisdom, has provided
that the accused shall have the right to testify in his own behalf.
Such a privilege would be a vain one if the judge, to whose
lightest word the jury properly enough give a great weight, should
intimate that the dreadful condition in which the accused finds
himself should deprive his testimony of probability. The wise and
humane provision of the law is that 'the person charged shall at
his own request, and not otherwise, be a competent witness.' The
policy of this enactment should not be defeated by hostile
intimations of the trial judge, whose duty it is to give reasonable
effect and force to the law. "
Page 160 U. S. 208
Similar views have been expressed in many cases in the state
courts.
In
Commonwealth v. Wright, 107 Mass. 403, it was held
that there was no presumption either way as to the truthfulness of
a defendant's testimony in a criminal case, and that his testimony
is to be considered and weighed by the jury, taking all the
circumstances of the case and all the other evidence into
consideration and giving such weight to the testimony as in their
judgment it ought to have.
"It cannot," observed Scholfield, J., in
Chambers v.
People, 105 Ill. 409,
"be true that the evidence given by the defendant charged with
crime is not to be treated the same as the evidence of other
witnesses. It could not even be true as a universal proposition
that, as matter of law, it is not to have the same effect as the
evidence of other witnesses. Many times it certainly cannot have
that effect, but there are times when it can and should, and of
this the jury are made the judges."
And see Greer v. State, 53 Ind. 420;
Veatch v.
State, 56 Ind. 584;
Buckley v. State, 62 Miss. 705;
State v. Johnson, 16 Nev. 36.
Among the errors assigned in the present case was one to so much
of the charge as is given below in italics, in respect of which a
sufficient exception was preserved. The trial judge said:
"You have heard in argument here -- incidentally dropped, no
doubt, because these things have been repeated here so often in
this Court that every child knows what the law of self-defense is
-- that if a man thinks he has a right to slay, he can slay. That
is a great misapprehension of what this proposition of the law is
and what it means. If that was the case, how many men, when they
were arraigned for the killing of a human being, would not assert
that they thought they had a right to kill? They might be mistaken,
but they thought so. They perhaps had a misunderstanding of the
law, but then they thought they had the right to kill. What a
perversion of this protection agency called the 'law of the land'
this would be. No, that is not the law. It must be shown
Page 160 U. S. 209
by the evidence that the party who was slain was at the time
doing something that would satisfy a reasonable man, situated as
was the defendant, that the deceased, William Allison, then and
there was about to do that which would destroy the life of the
defendant, and that he could not prevent it except by doing as he
did do.
The question as to whether that is the state of case or
not is a question that is to be finally passed upon by the juries
of the country, and by you in this case, and you must have
something more tangible, more real, more certain, than that which
is a simple declaration of the party who slays, made in your
presence by him as a witness, when he is confronted with a charge
of murder. All men would say that. No man created would say
otherwise when confronted by such circumstances, and the juries, as
a matter of fact, would have nothing to do but to record the
finding which was willed or established by the declaration of the
party who did the killing."
In this there was error. While the trial judge may not have
intended to be understood that the defendant could not prove his
defense by his own testimony, and had it in his mind simply to warn
the jury that they should not rely on the defendant's opinion that
his conduct was justifiable on the facts or what reasonably
appeared to him to be such, we think these remarks had a much wider
scope, and must have been so understood by the jury. The "state of
case" put to the jury was whether William Allison was at the time
doing something that would satisfy a reasonable man, situated as
defendant was, that he was about to do what would destroy
defendant's life, and which defendant could not prevent except by
doing as he did, and the question as to the existence of that state
of case was required by the instruction to be passed on by the jury
on something more than defendant's declaration, which, it was
stated, would certainly be made by any man created when confronted
with a charge of murder.
Defendant had testified to the facts upon which he based his
belief that he was in peril, and it was for the jury to say from
the evidence whether the facts as he stated them actually or
apparently existed, and whether the homicide could
Page 160 U. S. 210
therefore be excused either wholly or in part. And if the jury
regarded the remarks of the court as applicable generally to
defendant's testimony, then defendant was practically deprived of
its benefit, and the statute enabling him to testify was rendered
unavailing. In our opinion, the liability of the jury to thus
understand these observations was so great that their utterance
constitutes reversible error.
Nor was this error obviated by what, sometime after -- the
intervening portion of the charge occupies six closely printed
pages -- was said by the trial judge, as follows:
"The defendant has gone upon the stand, and he has made his
statement. See if it is in harmony with the statements of witnesses
you find to be reliable. If they are not, they stand before you as
contradicted. If they are, they stand before you as strengthened as
you may attach credit to the corroborating facts. In passing upon
his evidence, you are necessarily to consider his interest in the
result of this trial, in the result of this case. He is related to
the case more intimately than anybody else, and you are to apply
the principle of the law that is laid down everywhere in all
civilized countries, commanding you to look at a man's statements
in the light of the interest that he has in the case. There is no
odor of sanctity thrown around the statements of the defendant as a
witness, as is sometimes supposed, because he is charged with
crime. You are to view his statements in the light of their
consistency, their reasonableness, and their probability, the same
as the statements of any other witness, and you are to look at them
in the light of the interest he has in the result of the case."
If this should be in any aspect treated as a modification of the
previous assertions of the court, it was too far separated from
that connection to permit us to attribute that operation to it, and
moreover it was in itself erroneous. As a witness, a defendant is
no more to be visited with condemnation than he is to be clothed
with sanctity simply because he is under accusation, and there is
no presumption of law in favor of or against his truthfulness.
Exception was taken, not with much precision, but, we are
disposed to hold, sufficiently to save the point, to the
following
Page 160 U. S. 211
instruction, given in discussing the question of malice
aforethought:
"Now of course you are to distinguish (and I have to be
particular upon this point; I have my reasons for it, and it is not
necessary to name to you what they are) between a case where a man
prepares simply to defend himself and keeps himself in the right in
that defense and a state of case where he prepares himself
recklessly, wantonly, and without just cause to take the life of
another. If he prepares himself in the latter way, and he is on the
lookout for the man he has thus prepared himself to kill, and he
kills him upon sight, that is murder, and it would shock humanity,
or even the most technical and hair-splitting court, to decide
anything else. That can be nothing else but murder. If he is in the
right -- if he is in the right at the time of the killing -- and
simply prepared himself to defend his own life, that is
preparation, not to take the life of another, but preparation to
defend himself. That is the distinction -- a distinction that is
clear and comprehensive."
And also to this, in reference to the exercise of the right of
self-defense:
"The first proposition is as follows: 'A man who, in the lawful
pursuit of his business' -- I will tell you after a while what is
meant by that. I will tell you, in short, in this connection, it
means that the man is doing at the time just exactly what he had a
right to do under the law. When so situated --"
"is attacked by another under circumstances which denote an
intention to take away his life, or to do him some enormous bodily
harm, may lawfully kill the assailant, provided he uses 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 his adversary without killing him, if it be in his
power."
"Now that means by its very language that the party was in the
right at the time. I f he was hunting up his father for the purpose
of getting an opportunity to slay him without just cause and in the
absence of legal provocation, he was not in the right, and the
consequence would be that he would be deprived of the law of
self-defense, as you will learn presently, when such a condition as
that exists. Now, of
Page 160 U. S. 212
course, in this connection, and I am this particular again for
certain reasons, you are to draw the distinction between a state of
case where a man arms himself, where there is ill will, or grudge,
or spite, or animosity, existing, and he hunts up his adversary,
and slays him, and the state of case where he simply arms himself
for self-defense. He has a right to do the latter as long as he is
in the right, but he has no right to do the former, and if he does
the former, and slays because of that condition, he is guilty of
murder."
We are of opinion that defendant's objections to these portions
of the charge are well founded. The hypothesis upon which the
defense rested on the trial was that John Allison had a gun with
him on the morning of the tragedy in order to hunt deer, and that
his stopping at Farris' place, which was on his way to Rucker's,
was accidental. His testimony to this effect was corroborated, and
was not contradicted.
Justice and the law demanded that so far as reference was made
to the evidence, that which was favorable to the accused should not
be excluded. His guilt or innocence turned on a narrow hinge, and
great caution should have been used not to complicate and confuse
the issue. But the charge above quoted ignored the evidence tending
to show that defendant had not armed himself at all, but had a gun
with him for purposes of sport, and that his halt at Farris' had no
connection whatever with the deceased, and invited the jury to
contemplate the spectacle of a son hunting up his father with the
deliberately preconceived intention of murdering him, unrelieved by
allusion to defensive matter, which threw a different light on the
transaction.
If defendant were "in the right at the time of the killing," the
inquiry as to how he came to be armed was immaterial, or at least
embraced by that expression. If there were evidence -- and as to
this the record permits no doubt -- tending to establish that
defendant carried his gun that morning for no purpose of offense or
defense, then this disquisition of the court was calculated to
darken the light cast on the homicide by the attendant
circumstances as defendant claimed them to be, and of this he had
just cause to complain, even though
Page 160 U. S. 213
there were competent evidence indicating that he harbored
designs against his father's life, as frequently intimated by the
court -- intimations which we fear seriously trenched on that
untrammeled determination of the facts by a jury to which parties
accused are entitled.
As will have been seen, the theory of the defense was that
defendant was in terror of his life by reason of the threats of
deceased to take it, and was therefore led to interpret the alleged
menacing action of deceased as demonstrating an intention then and
there to carry those threats into execution. The bearing of the
previous threats, then, was very important, and in relation to them
the trial judge admonished the jury as follows:
"Now then, these mitigating facts which reduce the killing so as
to make it manslaughter cannot be previous acts of violence,
exerted at some other time, and so far in the past as that there
was time for the blood to cool, or the party to think or to
deliberate -- it cannot be an act of that kind that can be taken
into account to mitigate the crime. Nor can they exist in the shape
of previous threats, made at some other time than the killing, or,
if you please, if the proof had shown that they were made at the
time of the killing, because threats of violence -- mere threats of
that character -- cannot be used to justify nor to mitigate a
killing unless they are coupled with some other condition, which I
will give you in connection with the law given you showing the
figure that threats cut in a case. . . . If threats were made
previous to the time of the killing, and they were not coupled with
the condition that they may be used to illustrate, as I will give
it to you presently, and the party kills because of those threats,
that is evidence of spite, that is evidence of grudge, that is
evidence showing that he kills because of ill will and special
animosity existing upon his part against the party who is
slain."
After much intervening discussion on other matters, the subject
was returned to thus:
"You want to know, of course, what figure threats cut. Evidence
has been offered here of threats made by the deceased. You want to
know what office they perform in the
Page 160 U. S. 214
case; how you are to view them; whether you are to say that the
law authorizes you to say that if a man has been threatened at some
time previous to the killing, and that he kills because of these
threats, or he kills when no overt demonstration of violence,
really or apparently, is being made by the party slain at the time,
whether or not those threats can be taken into consideration by you
to excuse that killing, or to mitigate it. . . . Now, you see, they
do not cut any office at all in favor of a defendant unless at the
time, in this case, his father was doing some act, making some
actual attempt, to execute the threat, as shown by some act or
demonstration at the time of the killing, taken in connection with
the threat, that would induce a reasonable belief upon the part of
the slayer that it was necessary to deprive his father of life in
order to save his own or prevent some felony upon his person. That
is the law, stated plainly, as to the office of communicated
threats. . . . If he (the deceased) was doing some act or making
some demonstration that really or apparently was of a character
that indicated a design to take life, then the defendant could
couple previous threats made with the act or demonstration. Now the
act or demonstration must have gone sufficiently far to show a
reasonable purpose, or to induce a reasonable belief, when coupled
with threats, under the circumstances, that that was William
Allison's purpose at the time. It must have gone to that extent. It
must have gone sufficiently far, the overt act done by him, as to
induce a reasonable belief, when coupled with threats, that that
was his purpose. . . . Now you see that no matter how many threats
William Allison may have made against his family, and no matter to
what extent this family broil had gone, this defendant, because of
threats of that character, could not hunt him up and shoot him down
because of those threats. If that was the state of case, the
threats cannot be considered in his favor, but they may be
considered to show that he killed him because of malice, because of
malice aforethought existing, because of a spirit of spite or ill
will or grudge that he was seeking to satisfy by that sort of
attack."
Defendant excepted to so much of these instructions as ruled
Page 160 U. S. 215
that threats to take his life might be treated as constituting
evidence of spite or ill will or grudge on his part.
In
Wiggins v. People, 93 U. S. 465, it
was held that, on a trial for a homicide committed in an encounter,
where the question as to which of the parties commenced the attack
is in doubt, it is competent to prove threats of violence against
defendant made by deceased, though not brought to defendant's
knowledge, for the evidence, though not relevant to show the
quo animo of the defendant, would be relevant under such
circumstances to show that, at the time of the meeting, deceased
was seeking defendant's life. Wharton Crim.Ev. § 757;
Stokes v.
People, 53 N.Y. 174;
Campbell v. People, 16 Ill. 17;
People v. Scoggins, 37 Cal. 676;
Roberts v.
State, 68 Ala. 156. It is from the dissenting opinion in
Wiggins' case that the trial judge indulged in quotation
in connection with the undisputed proposition that a person's life
is not to be taken simply because he has made threats.
Here, the threats were recent, and were communicated, and were
admissible in evidence as relevant to the question whether
defendant had reasonable cause to apprehend an attack fatal to
life, or fraught with great bodily injury, and hence was justified
in acting on a hostile demonstration, and one of much less
pronounced character than if such threats had not preceded it. They
were relevant because indicating cause for apprehension of danger
and reason for promptness to repel attack, but they could not have
been admitted on a record such as this, if offered by the
prosecution as tending to show spite, ill will, or grudge on the
part of the person threatened; nor could they, being admitted on
defendant's behalf, if coupled with an actual or apparent hostile
demonstration, be turned against him in the absence of evidence
justifying such a construction. The logical inference was that
these threats excited apprehension, and another and inconsistent
inference could not be arbitrarily substituted. If defendant, to
use the graphic language of the court, hunted his father up and
shot him down merely because he had made the threats, speculation
as to his mental processes was uncalled for. If defendant committed
the homicide because of the threats, in the sense
Page 160 U. S. 216
of acting upon emotions aroused by them, then some basis must be
laid by the evidence other than the threats themselves before a
particular emotion different from those they would ordinarily
inspire under the circumstances could be imputed as a motive for
the fatal shot.
What is or is not an overt demonstration or violence varies with
the circumstances. Under some circumstances, a slight movement may
justify instant action because of reasonable apprehension of
danger; under other circumstances this would not be so. And it is
for the jury, and not for the judge, passing upon the weight and
effect of the evidence, to determine how this may be. In this case,
it was essential to the defense that the jury should be clearly and
distinctly advised as to the bearing of the threats and the
appearance of danger at the moment, from defendant's standpoint,
and particularly so as it did not appear that the deceased then had
a pistol upon him, though there was evidence that it was his habit
to carry one, and that he had had one immediately before.
We think that the language of the court in the particulars named
is open to the criticism made in reference to like instructions
under consideration in
Thompson v. United States,
155 U. S. 271,
155 U. S. 181,
where we remarked:
"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 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."
Other exceptions to parts of the charge were taken, but, while
not to be understood as holding that there was no error in respect
thereof, we do not feel called upon to prolong this opinion, by
their consideration, and they may not arise upon another trial.
Page 160 U. S. 217
Where the charge of the trial judge takes the form of animated
argument, the liability is great that the propositions of law may
become interrupted by digression, and so intermingled with
inferences springing from forensic ardor that the jury are left
without proper instructions, their appropriate province of dealing
with the facts invaded, and errors intervene which the pursuit of a
different course would have avoided.
Judgment reversed, and cause remanded, with a direction to
set aside the verdict and grant a new trial.