Tak-Ke and the plaintiff were indicted for murder. On the
separate trial of the plaintiff in error, Tak-Ke's wife was a
witness against him. On cross-examination, the following questions
were put to her: Who are you
Page 167 U. S. 275
living with now? Is it not a fact that, since your husband was
arrested and convicted, you have been living with this witness
Ke-Tinch? Is it not a fact that shortly after this affair took
place, you and the witness Ke-Tinch agreed to live together if your
husband was convicted and you yourself got clear? Each of these was
objected to as immaterial and incompetent, and the objection was
sustained.
Held that the questions should have been
allowed.
The same objections made, sustained below, and that court
overruled here, as to drinking of the defendant and as to what took
place at the sailing of the sloop.
The case is stated in the opinion.
MR. JUSTICE PECKHAM delivered the opinion of the Court.
This case comes here on writ of error to the District Court of
the United States for the District of Alaska. The plaintiff in
error is an Indian, and was indicted with another Indian, named
Tak-Ke, and, upon a separate trial, was convicted of the crime of
murder, in killing one August Jansen on or about the 5th day of
January, 1894 at or near Shekan, within the Territory of Alaska and
within the jurisdiction of the district court thereof. He was
thereupon sentenced to be hanged.
Upon the trial in the district court, it appeared that the
authorities at Fort Wrangel, some 70 miles from Shekan, were
informed by some indians at that place in May, 1894, of the alleged
murder of Jansen in the preceding January at or near Shekan. In
July of that year, the United States commissioner, a deputy
marshal, and some others started from Fort Wrangel in a steam
launch chartered for the purpose, and went to Shekan to find the
body, if possible, and to take such other proceedings as were
proper in the premises. An Indian woman, Tlak-Sha, voluntarily
accompanied them for the purpose of showing where the body was to
be found. A short distance from Shekan, the party landed on the
beach,
Page 167 U. S. 276
and under her direction, search was made, and the body of Jansen
was discovered on the beach, covered over with rock and brush. The
body was sufficiently preserved to be identified, and it was
recognized by some of the party. After the finding and recognition,
the defendant, with the other above-named Indian, Tak-Ke, was
indicted for murder, and upon the defendant's separate trial, the
Indian woman was sworn as a witness. She testified that in January,
1894, the deceased was killed by the defendant and Tak-Ke, who was
her husband; that they were in a small sloop near Shekan at the
time of the murder, and there were present the deceased, three male
Indians, herself, and her child . The third Indian was named
Ke-Tinch, and he was also sworn on the trial, and, while differing
in some of the details from the story of the woman, he corroborated
her in the statement that the killing was done by the defendant and
by the woman's husband, the defendant shooting the deceased, and
the woman's husband striking him on the head with an ax.
The two Indians above named are the only witnesses to the
killing. The female witness accompanied the searching party from
Fort Wrangel, and with her assistance the body was found. As one of
the two witnesses on the trial, she testified against the defendant
and her own husband, who was indicted for the crime, though not
then on trial. It is apparent how important it was to show to the
jury, if possible, the bias, if any, of the witness against the
defendant, or to show that her credibility was not to be depended
upon by the jury.
In the course of her cross-examination upon the trial, the
following questions were put to her:
"Q. Before this affair took place, were you Tak-Ke's wife?"
"A. Yes, sir."
"Q. Whose wife are you now?"
"A. I am not married now."
"Q. Who are you living with now?"
Counsel for the prosecution objected to the above question as
immaterial and incompetent. Objection sustained by the court, to
which ruling counsel for the defendant then and there duly
excepted.
"Q. Is it not a fact that, since your husband was arrested
Page 167 U. S. 277
and convicted, you have been living with this witness,
Ke-Tinch?"
Counsel for the prosecution objected to the above question as
incompetent. The objection was sustained by the court, and an
exception taken.
"Q. Is it not a fact that, shortly after this affair took place,
that you and the witness Ke-Tinch agreed to live together if your
husband was convicted and you yourselves got clear?"
Same objection was taken, which was sustained by the court, and
an exception taken.
"Q. I will ask you if it is not a fact that this defendant got
so drunk [upon this occasion] that he was laid in the canoe and
covered over, and did not recover until after the body had been
concealed."
"A. No, sir; he didn't get drunk. Nobody drank."
"Q. I will ask you if it is not a fact that, when he awoke and
saw the sloop sailing away, and asked where the sloop was going,
that Tak-Ke told him the white man was sailing away."
Objection taken to the question as incompetent, irrelevant, and
immaterial. Objection sustained by the court, and an exception
taken.
We think answers to all these questions should have been
permitted. The questions were directed to the purpose of showing
material facts bearing upon the character and credibility of the
witness, and the counsel for the defendant ought to have been
permitted to proceed with his examination, and obtain answers from
the witness to that end. The two Indian witnesses (of whom the
woman was one) did not agree in regard to the details of the
alleged murder, and there is enough in the record to show that they
were both of a low order of intelligence, and that they testified
without any very solemn appreciation of their responsibilities as
witnesses upon the trial of one individual for the murder of
another. The whole occurrence at the time of the alleged murder is
left in a good deal of confusion, and the credence to be given to
the testimony of the woman was of the highest importance.
Page 167 U. S. 278
The learned solicitor general, in his brief in this case, with
most commendable candor and fairness, has said:
"But we feel constrained to say, from an analysis of the
evidence certified in this record, that while it was left to the
jury to ascertain the facts established by the evidence, the mind
is oppressed with a painful doubt as to the soundness of the
verdict returned by the jury."
And in speaking of the refusal of the court to permit answers to
be given to the questions asked, as above recited, counsel for the
government also says in his brief:
"No reason is given for the exclusion of these questions, beyond
that reiterated in the objection, that they were 'incompetent,
irrelevant, and immaterial.'"
He frankly says that in his opinion this evidence was
admissible, and we have no doubt that it was.
The judgment must therefor be reversed, and the cause
remanded to the district court of Alaska with instructions to set
aside the verdict and grant a new trial.