Bird was indicted for murder. The killing was admitted, but it
was claimed to have been done in self-defense. At the trial, a
government witness testified
"that, in the month of August, when the defendant, in company
with the deceased Hurlin, R. L. Patterson, Naomi Strong, and
witness, were going up the Yukon River in a steam launch, towing a
barge loaded with their provisions, Hurlin was steering; that the
defendant was very disagreeable to all the other persons; that,
when they would run into a sandbar, he would curse them; be would
say: 'The Dutch sons of bitches don't know where to run it.' On one
occasion, they were getting wood on the bank of the river, and Bird
got cut and wanted to hit Patterson. Witness didn't remember
exactly what was said, but defendant called Patterson a 'son of a
bitch,' and told him he would 'hammer the devil out of him,' and
witness and the others would not let them fight. And if anything
would go wrong, he, defendant, would not curse in front of the
witness' and the others' faces, but defendant would be disagreeable
all the way along, and would make things very disagreeable."
This evidence was excepted to, and the court held that its only
doubt was whether the evidence, though improperly admitted, was of
sufficient importance to call for a reversal of the judgment, but
it sustained the exception. Afterwards the government, to maintain
the issues on its part, offered the following testimony of the
witness Scheffler: that, in the latter part of March, 1899, after
Patterson had been carried to Anvik, Bird made a trip up the river
and came back with a man by the name of Smith; that Smith left, and
the next day after that, Bird was very disagreeable, and tried to
pick a fight with the woman, Naomi Strong; he acted very funny, you
had to watch him and be careful. He got awful good after that, and
everything was just so. It was "Charles this," and "Naomi this." To
which testimony defendant excepted, and the exception was
sustained.
The court, at the request of the government, instructed the jury
that
"if they believe from the evidence beyond a reasonable doubt
that the defendant Bird, on the 27th day of September, 1898 at a
point on the Yukon River about two miles below the coal mine known
as Camp Dewey and about 85 miles above Anvik and within the
District of Alaska, shot and killed one J. H. Hurlin, and that said
killing was malicious, premeditated and willful, and that said
killing was not in the necessary defense of the defendants' life or
to prevent the infliction upon him of great bodily harm, then it is
your duty to find the defendant guilty as charged in the
indictment."
Held that this was substantial error.
Page 180 U. S. 357
At a term of the United States District Court in and for the
District of Alaska, Homer Bird, the plaintiff in error, was tried
on a charge of having murdered one J. H. Hurlin on the 27th day of
September, A.D. 1898. On December 6, 1899, the jury found the
defendant guilty as charged in the indictment, and on December 13,
1899, a motion for a new trial having been overruled, a sentence of
death by hanging on February 9, A.D. 1900, was pronounced. A bill
of exceptions was settled and signed by the trial judge on February
8, 1900, and a writ of error from the Supreme Court of the United
States was allowed. The evidence contained in the bill of
exceptions shows that a party of five persons, composed of Homer
Bird, J. H. Hurlin, Robert L. Patterson, Charles Scheffler, and
Naomi Strong, sailed up the Yukon River, in the latter part of
July, 1898, on an adventure in search of gold. They traveled on a
small steam launch, towing a scow laden with an outfit of clothes
and provisions sufficient to last them about two years. In the
latter part of September, 1898, they reached a point on the river
about 600 miles from St. Michaels at the mouth of the Yukon, when
they determined to go into winter quarters, and there began the
construction of a cabin on the banks of the stream. On September
27, 1898, in a quarrel that had arisen about a partition of the
supplies, Hurlin was shot and killed by Bird. At the trial in
December, 1899, there were three witnesses who had been present at
the time of the homicide, Scheffler, Strong and Bird, the accused.
As the fact of the killing of Hurlin by Bird was not denied, the
trial turned on the question whether the killing was malicious and
willful or was in self-defense.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
The assignments of error are twenty-five in number, but of these
we think it sufficient to consider only the tenth, the fourteenth,
and twenty-third.
Page 180 U. S. 358
The homicide, as alleged in the indictment, occurred on
September 27, 1898 at a point on the Yukon River about eighty-five
miles above Anvik and about two miles below a coal mine known as
Fort Dewey.
At the trial, the government called as a witness for the
prosecution one Charles Scheffler, who testified, among other
things --
"That in the month of August, when the defendant, in company
with the deceased, Hurlin, R. J. Patterson, Naomi Strong, and
witness, were going up the Yukon River in a steam launch, towing a
barge loaded with their provisions, Hurlin was steering; that the
defendant was very disagreeable to all the other persons; that,
when they would run into a sandbar, he would curse them; he would
say 'the Dutch sons of bitches don't know where to run it.' On one
occasion, they were getting wood on the bank of the river, and Bird
got out and wanted to hit Patterson. Witness didn't remember
exactly what was said, but defendant called Patterson a 'son of a
bitch,' and told him he would 'hammer the devil out of him,' and
witness and the others would not let them fight. And if anything
would go wrong he, defendant, would not curse in front of witness
and the others' faces, but defendant would be disagreeable all the
way along, and would make things very disagreeable."
To this testimony the defendant, by his counsel, objected "as
immaterial and irrelevant, and too remote from the time the offense
is charged to have been committed," but this objection was by the
court overruled, and said testimony permitted to go to the jury, to
which ruling of the court he then and there excepted. This
testimony, the objection, and the ruling are set forth in the bill
of exceptions, and form the subject of the tenth assignment of
error.
As it was not denied that Hurlin died immediately from a wound
intentionally inflicted by the accused, the issue to be determined
by the jury was whether the accused was actuated by a malicious
motive or acted in self-defense.
As the testimony in this issue was conflicting, or, rather, the
defendant's evidence not yet having been given, as it might well
have been anticipated that the testimony would be conflicting, it
seems to have been the theory of the prosecution
Page 180 U. S. 359
that the evidence in question in the tenth assignment tended to
show such a state of emnity on the part of the accused towards the
deceased as to warrant the jury in finding that the act of the
accused in shooting the deceased was the result of a preexisting
unfriendly feeling.
The general rule on the subject of permitting testimony to be
given of matters not alleged is that nothing shall be given in
evidence which does not directly tend to the proof or disproof of
the matter in issue. And it was said by Mr. Best in the
ninety-second section of "Principles of Evidence," that whether a
given fact bearing indirectly on a matter in issue should be
received as circumstantial or rejected as conjectural evidence is
often a question of extreme difficulty.
In the proof of intention, it is not always necessary that the
evidence should apply directly to the particular act with the
commission of which the party is charged, for the unlawful intent
in the particular case may well be inferred from a similar intent,
proved to have existed in other transactions done before or after
that time. Thus, upon the trial of a person for maliciously
shooting another, the question being whether it was done by
accident or design, evidence was admitted to prove that the
prisoner intentionally shot at the prosecutor at another time about
a quarter of an hour distant from the shooting charge in the
indictment.
So, also, in cases of homicide, evidence of former hostility and
menaces on the part of the prisoner against the deceased is
admissible in proof of malice. 3 Greenleaf, sec. 15.
But in the case of
Farrer v. State, 2 Ohio St. 54, it
was held upon full consideration that, on an indictment charging
the prisoner with poisoning A in December, 1851, it is error to
permit evidence in chief to show that she poisoned B in the month
of August previous.
So, in
Commonwealth v. Horton, 2 Gray 354, it was held
by the Supreme Judicial Court of Massachusetts that, under an
indictment charging one act of adultery at a particular time and
place, evidence of other acts of a similar character at other times
and places is inadmissible, the court saying:
Page 180 U. S. 360
"It is a universal rule in the trial of criminal cases that
nothing shall be given in evidence which does not directly tend to
the proof or disproof of the matter in issue. The prosecuting
officer is not, therefore, allowed to give evidence of facts
tending to prove a similar but distinct offense for the purpose of
raising an inference or presumption that the accused committed the
particular act with which he is charged."
But even if it be conceded that prior conduct of the accused may
be put in evidence in order to show that he had feelings of emnity
towards the deceased, we are clear that the testimony was
wrongfully admitted in the present case, because the time of the
incident testified to, more than a month before the homicide, was
too remote, and because the incident itself did not tend to prove
any feeling of emnity on the part of Bird to the deceased such as
to warrant the jury in inferring that the subsequent homicide was
malicious and premeditated. The particular violence threatened was
not against the deceased, but against another member of the party,
and the vulgar language attributed to the accused was of a
character not unusual among coarse men engaged in such an
adventure.
The only doubt we feel is whether the evidence, though
improperly admitted, was of sufficient importance to call for a
reversal of the judgment. However, we cannot say that the testimony
did not suffice to turn the scale against the prisoner. And we are
the more inclined to sustain this exception because the error was
immediately followed by another and similar one, appearing in the
fourteenth assignment of error.
The bill of exceptions discloses that, over objection, Scheffler
was permitted to testify as follows:
"That in the latter part of March, 1899, after Patterson had
been carried to Anvik, Bird made a trip up the river and came back
with a man named Smith; that Smith left, and the next day after
that, Bird was very disagreeable and tried to pick a fight with the
woman Naomi Strong; he acted very funny. You had to watch him and
be careful. He got awful good after that, and everything was just
so. It was Charles this and Naomi that."
The matters so testified to took place six months after the
Page 180 U. S. 361
alleged murder, and would seem to have no bearing, direct or
remote, upon the guilt of the accused, but still may have tended to
persuade the jury that Bird was a dangerous man, and likely to kill
anyone who excited his anger.
We think there was substantial error in the first paragraph of
the instructions given the jury by the court at the request of the
government, and which was as follows:
"The court instructs the jury, if they believe from the evidence
beyond a reasonable doubt that the defendant Homer Bird, on the
27th day of September, 1898 at a point on the Yukon River, about
two miles below the coal mine known as Camp Dewey and about 85
miles above Anvik and within the District of Alaska, shot and
killed one J. H. Hurlin, and that said killing was malicious,
premeditated, and willful, and that said killing was not in the
necessary defense of the defendant's life or to prevent the
infliction upon him of great bodily harm, then it is your duty to
find the defendant guilty as charged in the indictment."
The bill of exceptions shows that to
"this instruction the defendant then and there excepted for the
reason that the same is erroneous because not qualified by the
further charge that, if the defendant believed, and had reason to
believe, that the killing was necessary for the defense of his life
or to prevent the infliction upon him of great bodily harm, then he
was not guilty."
It is well settled that the defendant has a right to a full
statement of the law from the court, and that a neglect to give
such full statement, when the jury consequently fall into error, is
sufficient reason for reversal. The numerous decisions to this
effect are cited in Wharton on Criminal Law, vol. 3, sec. 3162, 7th
ed. The chief object contemplated in the charge of the judge is to
explain the law of the case, to point out the essentials to be
proved on the one side and the other, and to bring into view the
relations of the particular evidence adduced to the particular
issues involved.
It has sometimes been said that, if the judge omits something
and is not asked to supply the defect, the party who remained
voluntarily silent cannot complain. But such a principle cannot
Page 180 U. S. 362
apply to the present case, because the judge's attention was
directly called by the government's request to the question of
self-defense, and because the defect in that request was then and
there pointed out by the defendant's counsel in their exception.
The question involved in that instruction was a fundamental one in
the case -- indeed, it may be said that the defendant's sole
defense rested upon it. The defendant, as shown in the bill of
exceptions, had testified to his own belief that his life was in
danger, and to the facts that led him so to believe; but, by the
instruction given, the jury were left to pass upon the vital
question without reference to the defendant's evidence.
Beard
v. United States, 158 U. S. 554,
158 U. S.
559.
As the trial judge allowed and signed a bill of exceptions to
his instruction in this behalf, it cannot be fairly presumed that
the error was healed by any modification or correction made in some
other and undisclosed part of his charge.
The judgment of the District Court of the United States for
the District of Alaska is reversed, and the cause is remanded to
that court with directions to set aside the verdict and award a new
trial.
