1. A writ of error from this Court to the Supreme Court of the
Territory of Utah is allowed by sec. 3 of the Act of Congress of
June 23, 1874, 18 Stat. 254, in criminal cases, where the accused
has been sentenced to capital punishment or convicted of bigamy or
2. In a trial for homicide where the question whether the
prisoner or the deceased commenced the encounter which resulted in
death is in any manner of doubt, it is competent to prove threats
of violence against the prisoner made by the deceased, though not
brought to the knowledge of the prisoner.
MR. JUSTICE MILLER delivered the opinion of the Court.
Sec. 3 of the Act of Congress of June 23, 1874, 18 Stat. 254,
allows a writ of error from this Court to the Supreme Court of the
Territory of Utah, where the defendant has been convicted of bigamy
or polygamy or has been sentenced to death for any crime. The
present writ is brought under that statute to obtain a review of a
sentence of death against plaintiff in error for the
Page 93 U. S. 466
murder of John Kramer, commonly called Dutch John, in Salt Lake
City. The only error insisted upon by counsel, who argued this case
orally, was the rejection of testimony offered by the prisoner, as
shown by the following extract from the bill of exceptions:
"The defendant, on the trial of this cause, called Robert Heslop
as a witness in his defense, who testified:"
"That just a short time before the shooting, the deceased showed
him a pistol which he [deceased] then had upon his person. Deceased
at this time was sitting on a box on the opposite side of the
street from the Salt Lake House, and in front of Reggels'
"The prosecuting attorney admitted that this was after the
deceased was ejected from defendant's saloon."
"Whereupon the counsel for the defendant asked witness the
"What if any threats did the deceased make against the defendant
at this time? which was objected to by the prosecuting attorney,
for the reason it was immaterial."
"The objection was sustained by the court, and the defendant, by
his counsel, then and there duly excepted."
"Defendant's counsel then asked witness what if anything did
deceased then say concerning the defendant."
"[Objected to by prosecuting attorney as incompetent.]"
"Defendant's counsel thereupon stated that they expected to
prove by this witness that in that conversation, a short time prior
to the killing, the deceased, in the hearing of said witness, made
the threat that he would kill the defendant before he went to bed
on the night of the homicide, which threats we cannot bring home to
the knowledge of the defendant."
"Which was objected to by the counsel for the prosecution,
because it was incompetent."
"The objection was sustained by the court, to which the
defendant then and there excepted."
"This witness, and several others, testified that the deceased's
general character was bad, and that he was a dangerous, violent,
vindictive, and brutal man."
Although there is some conflict of authority as to the admission
of threats of the deceased against the prisoner in a case of
homicide, where the threats had not been communicated to him,
Page 93 U. S. 467
there is a modification of the doctrine in more recent times,
established by the decisions of courts of high authority, which is
very well stated by Wharton, in his work on Criminal Law, �
"Where the question is as to what was deceased's attitude at the
time of the fatal encounter, recent threats may become relevant to
show that this attitude was one hostile to the defendant, even
though such threats were not communicated to defendant. The
evidence is not relevant to show the quo animo
defendant, but it may be relevant to show that at the time of the
meeting, the deceased was seeking defendant's life."
Stokes v. People of New York,
53 N.Y. 174; Keener
18 Ga. 194; Campbell v. People,
16 Ill. 18;
Holler v. State,
37 Ind. 57; People v. Arnold,
Cal. 476; People v. Scroggins,
Counsel for the government, conceding this principle to be
sound, sustains the ruling of the court below on the ground that
there is no evidence in the case to show any hostile movement or
attitude of the deceased towards the prisoner at the time of the
fatal shot and that there is conclusive evidence to the contrary.
In support of this latter position, he relies on the testimony of
Thomas Dobson, the only witness of the meeting which resulted in
the death of deceased by a pistol shot from defendant.
Before criticizing Dobson's testimony, it is necessary to state
some preliminary matters.
It appears that on the night of the homicide, the deceased and a
man of similar character called Bill Dean got into a quarrel in a
drinking saloon kept by defendant in which they both drew pistols.
Defendant interposed and took their pistols from them, and turned
them out of his saloon by different doors. He gave Dean his pistol
as he turned him out, and asserts that he also returned the
deceased his pistol, but of this there is doubt. Shortly after
this, he started homewards and fell in company with Dobson, who was
a night watchman of Salt Lake City. As they went along the street,
Dean was discovered in the recess of a doorway on the sidewalk with
a pistol in his hands, and defendant went up to him, took it away
from him, and he ran down the street. Passing on, Dobson and
defendant came in front of a hotel, the Salt Lake House,
Page 93 U. S. 468
where the homicide occurred, of which Dobson, the only witness,
tells his story thus:
"As I came down street about two o'clock in the morning, I saw
Dutch John sitting on the carriage steps of the Salt Lake House,
with his face resting on his hands, apparently in a stupor or
asleep. Wiggins, the defendant, was with me. He (Wiggins) jumped to
my rear, and immediately the firing commenced. I do not know and
cannot tell who fired the first shot. At the first report, I turned
round and saw the blaze of the second shot from a pistol in the
hands of Wiggins. I had advanced to the carriage steps, and said,
'Jack, don't kill him.' Wiggins then jumped on carriage steps and
fired another shot, which passed right by in front of me and into
the body of Dutch John. Dutch John grabbed me around the legs, and
we fell over the steps into the street. When I turned and saw the
first shot from Wiggins' pistol, I saw Dutch John's hands raised
and heard him cry out, 'Don't kill me; I am not armed.' Immediately
after the firing ceased, Wiggins stooped down as if to pick up
something, and when he raised up he had something in his left hand;
but I cannot tell whether it was a pistol or not. At the same time,
Wiggins made the remark to the deceased, 'You wanted to kill me,'
or 'You tried to kill me.' I am not sure which expression was
If we are to believe implicitly all that is here said by this
witness, we do not see in it conclusive evidence that defendant
fired the first shot, and that no previous demonstration was made
by deceased. On the contrary, he says he does not know and cannot
tell who fired the first shot. He does say that, when the vision of
Dutch John met their eyes, the defendant "jumped behind witness,
and immediately" (that is, just after) "the firing commenced." He
also says that immediately after the firing ceased, defendant
stooped down as if to pick up something and arose with something in
We do not think that this statement proves at all, certainly not
conclusively, that deceased did not fire the first shot. Either
there must have been some reason for defendant's jumping behind
witness, and he must have picked up a pistol which fell from the
hands of deceased, or he was guilty of consummate acting, for the
purpose of deceiving witness and making evidence to defend himself
from the charge of a murder which he intended to commit.
Page 93 U. S. 469
It is difficult to believe that on a sudden encounter anyone
would have such cool deliberation, and it is much more reasonable
to believe that the seeking of safety by jumping behind the witness
was caused by some movement or other evidence of hostile intent by
deceased which escaped the less vigilant eye of witness, and that
it was the display of the pistol which the defendant afterwards
picked up. This latter view is supported by other testimony, to be
But it is pertinent here to remark that both the effect of this
witness' testimony and his credibility were to be weighed by the
jury, and that doubt was thrown on the latter by showing that, in
the preliminary examination, he had made statements at variance
with what he now stated, which were more favorable to
Take all these together and we think the court had no right to
assume that it was beyond doubt that defendant had commenced the
assault, which resulted in death, by firing the first shot without
any cause, real or apparent. In this we are confirmed by other
parts of the testimony displayed in the bill of exceptions.
It is nowhere asserted that defendant fired more than three
shots. A witness, however, who was within hearing, swears
positively that he heard four shots. In agreement with this, it is
proved without contradiction that when defendant was arrested
immediately after the shooting, three pistols were found on him. Of
one of these, three barrels were empty; of another, one; and the
third was fully loaded. The police officer who arrested defendant
says of these pistols, "The one identified as Dutch John's had one
chamber empty; the one identified as Bean's had three chambers
empty, and the derringer was loaded." It is a fair inference that
the three empty barrels were those he had discharged at deceased,
and that the other was the one he had picked up after the shooting,
which had been in the hands of deceased.
Whence comes the fourth shot, and who emptied the chamber of
deceased's pistol? That deceased had a pistol with him is a
concession made by the prosecuting attorney on the trial. It will
be seen, in the extract from the bill of exceptions first given,
that the witness, Heslop, testifies positively that, just a
Page 93 U. S. 470
short time before the shooting, the deceased showed him a pistol
which he then had on his person while sitting on a box on the side
of the street opposite the scene of the homicide, and the
prosecution admitted that this was after the deceased had been
ejected from the saloon.
Here, then, was a man who had, a few hours or minutes before,
had a difficulty in which pistols were drawn; who was known to be
of desperate and vindictive character; who had shown a witness a
pistol within a few minutes preceding the fatal encounter, and that
pistol was, after the encounter, picked up on the sidewalk, where
it occurred, with a chamber empty. Also, strong evidence to show
that one more shot was fired than defendant had fired, and the
probability that it came from the pistol of deceased at that
Now when under all these circumstances the witness, and the only
witness who was present at the encounter, swears that he cannot
tell where the first shot came from, though he knows that defendant
only fired three, it must be very apparent that if the person to
whom the deceased exhibited that pistol a few minutes before the
shooting had been permitted to tell the jury that deceased then
said "he would kill defendant before he went to bed that night," it
would have tended strongly to show where that first shot came from
and how that pistol, with one chamber emptied, came to be found on
the ground. This testimony might, in the state of mind produced on
the jury by the other evidence we have considered, have turned the
scale in favor of defendant. At all events, we are of opinion that
in that condition of things it was relevant to the issue, and
should have been admitted.
Judgment reversed with directions to set aside the verdict
and grant a new trial.
MR. JUSTICE CLIFFORD dissenting.
Murder is the charge preferred against the prisoner, which, at
common law, is defined to be when a person of sound memory and
discretion unlawfully killeth any reasonable creature in being, and
in the peace of the state with malice aforethought, either express
or implied. Modern statutes defining murder in many cases affix
degrees to the offense, according to the nature
Page 93 U. S. 471
and aggravation of the circumstances under which the act of
homicide is committed.
Offenses against the lives and persons of individuals are
defined by the statutes of Utah as follows: whoever kills any human
being with malice aforethought, the statute of the territory
enacts, is guilty of murder, and the succeeding section of the same
act provides that all murder perpetrated by poison or by lying in
wait, or by any other kind of willful, deliberate, and premeditate
killing, or which is committed in the perpetration, or attempt to
perpetrate, any one of the offenses therein enumerated, is murder
of the first degree, and shall be punished with death. Laws Utah,
51, c. 21, tit. 2, secs. 4, 5.
Pursuant to that enactment, the grand jury of the third judicial
district, in due form of law, preferred an indictment against the
prisoner for the murder of John Kramer charging that he, the
prisoner, did, at the time and in the manner and by the means
therein described, feloniously, willfully, deliberately,
premeditatedly, and with malice aforethought, kill and murder the
deceased contrary to the form of the statute in such case made and
provided, and against the peace and dignity of the people of the
United States resident in the said territory.
Sufficient appears to show that the prisoner was arraigned in
due form of law, and that he pleaded to the indictment that he was
not guilty, as required by the statute of the territory; that,
material witnesses for the prisoner being absent, the indictment
was on his motion continued to the next term of the court. Both
parties being ready at the succeeding term of the court, the jury
was duly empanelled and sworn well and truly to try the issue, as
provided by law. Witnesses were called and examined by the
prosecution and for the defense, and the cause was regularly
committed to the jury having the prisoner in charge.
None of these proceedings are called in question, and it appears
that the jury retired, and, having duly considered the case,
returned into court, and gave their verdict that the prisoner is
guilty of murder in the first degree. Sentence in due form of law
was rendered by the court, as more fully appears in the record, and
the prisoner excepted to the rulings and instructions of the court,
and appealed to the supreme court of the territory,
Page 93 U. S. 472
as he had by law a right to do, where the judgment of the
subordinate court was affirmed. Laws Utah, 66, c. 31, sec. 5.
Error lies from that court to the Supreme Court in criminal
cases where the accused has been sentenced to capital punishment,
and the record shows that the prisoner sued out a writ of error,
and removed the cause into this Court. 18 Stat. 254.
Four errors are assigned in the transcript:
1. That the court erred in affirming the judgment of the
2. That the court erred in holding that the affidavit offered to
procure a continuance was insufficient.
3. That the court erred in sustaining the ruling of the district
court that the uncommunicated threats of the deceased, made in
connection with the exhibition of a pistol a short time before the
homicide, were inadmissible in evidence to the jury.
4. That the court erred in overruling the exceptions of the
prisoner to the instructions given to the jury by the district
Two of the errors assigned -- to wit, the second and fourth --
having been abandoned here in the argument for the prisoner, the
reexamination of the case will be confined to the third assigned
error, as the only remaining one which deserves any special
Expert testimony, not in any way contradicted, was introduced by
the prosecutor to the effect that the witness saw the deceased
immediately after he came to his death, and he testified that he
made a post-mortem examination of the body the next day; that the
deceased received two pistol wounds; that one shot struck him in
the side, a little back of a middle line from the hollow of the arm
down and just at the border of the ribs; and the witness stated
that he examined that wound, but that he did not trace the ball, as
the other wound was the one that proved fatal; that the other shot
struck him in the chin, and that, ranging downward, it cut the
external jugular vein, the ball burying itself in the muscles of
the shoulder, and that the deceased bled to death from that wound,
and the witness added to the effect that from the course the ball
took and the wounds it made in its course, the deceased must have
been sitting at the time with his head bowed down and resting on
Death ensued immediately, and the record discloses what
Page 93 U. S. 473
immediately preceded the homicide and what occurred at the time
it was committed. Beyond doubt, the homicide occurred about two
o'clock in the morning, and it is equally certain that it was
effected by the described shots from a pistol. Prior to that time
-- say about one o'clock or a little later -- the deceased, with
six or seven other persons, was in the saloon of the prisoner, and
it appears that the deceased and two of the others had a difficulty
and that one of them was struck over the head in the affray.
Revolvers were drawn by the deceased and one Bean, when the
prisoner interfered and took the pistols from both of them, and in
the scuffle struck the deceased over the head. He then put Bean out
of the back door, gave him his pistol, and told him to go home, and
he put the deceased out of the front door and told him to go home.
Half an hour or more later, the prisoner came down the street with
one of the witnesses for the prosecution, and when they arrived in
front of the Salt Lake House, the witness states that he saw the
deceased sitting on the carriage steps of the hotel, with his face
resting on his hands, apparently in a stupor or asleep; that the
prisoner jumped to the rear of the witness and that the firing
immediately commenced; that the witness did not know, and cannot
tell who fired the first shot; that at the first report, he, the
witness, turned round and saw the blaze of the second shot from a
pistol in the hands of the prisoner. Witness advanced to the
carriage steps, and he testifies that he said to the prisoner,
"Jack, don't kill him," to which it seems no response was given.
Instead of that, the prisoner then jumped to the carriage steps and
fired another shot, which, as the witness states, passed right in
front of him into the body of the deceased. Something may be
inferred as to its effect from the fact that the deceased raised
his hands, as the witness states, and that he heard him say, "Don't
kill me, I am not armed." Immediately after the firing ceased, the
prisoner stooped down as if to pick up something, and when he rose
up the witness noticed that he had something in his left hand, but
the witness is not able to state what it was.
Three witnesses testify that there were three shots fired in
rapid succession in front of the hotel, and one of them states that
he heard a fourth shot farther down the street. Two of
Page 93 U. S. 474
the witnesses concur that the first shot ranged from east to
west and that the range of the other two bore a little to the north
Several witnesses were examined for the defense, and one of them
testified that the deceased, when he was put out of the saloon and
told to go home, said he would go if the prisoner would give his
gun, and that the prisoner pushed him out of the door and handed
him his pistol, and that the deceased remarked, "I will make it hot
for you." Testimony was also given by another witness called for
the defense to the effect that the deceased, after he was ejected
from the saloon, showed the witness a pistol when he was sitting in
front of a store opposite the Salt Lake House.
Two questions were asked the witness, as follows:
1. What, if any, threats did the deceased make against the
2. What, if anything, did the deceased say concerning the
Objection was made to each question, and both were excluded by
the court, and the prisoner excepted to the respective rulings. Had
the questions been admitted, the prisoner expected to prove that
the deceased made the threat that he would kill the prisoner before
he went to bed that night; but the defense admitted that the
evidence would not show that the prisoner had knowledge of the
threat at the time of the killing. Due exception was taken to the
ruling, which is the basis of the assignment of error not waived by
the prisoner. Evidence was also introduced by the defense that the
general character of the deceased was bad and that he was a
dangerous, violent, and brutal man.
Subsequent to the affray in the saloon and before the homicide,
the deceased had a conversation with another witness called and
examined by the prosecution. He said that the prisoner had taken
his pistol from him and beat him over the head with it, and it
appears that he showed the witness the wounds in his head. About an
hour or less after that interview, they met again in front of the
hotel and walked up the street together, and in the course of the
conversation the witness asked him if he was armed, and the
deceased gave the witness very positive assurance that he was not,
that he had no
Page 93 U. S. 475
weapon about him except a pocket knife, which he showed to the
witness. Presently the deceased left and went down the street, and
the witness, in about a minute, started in the same direction, and
as he passed the saloon where the affray occurred, the prisoner
came out and commenced conversing with the witness. Among other
things, he said that the deceased and Bean had a difficulty in his
saloon, and that he took their pistols away from them and beat them
over the head with the pistols; that he put one of them out of the
back door and the other out of the front door; that he gave Bean
back his pistol, and told him that they could not have any trouble
in the saloon; that if there was to be any killing there, he was
going to do it himself. At that stage of the conversation, the
witness asked him what he did with the pistol of the deceased, and
the witness states that the prisoner pulled back the lapel of his
coat, and said, "I have it here." Immaterial matters are omitted.
Suffice it to say the prisoner proceeded down the street and the
witness soon followed, and when the latter got around Godbe's
corner, he heard a shot fired, then he turned and ran back towards
the hotel, and when he turned the corner he saw the flash and heard
the report of two other shots, and when he got in front of Hale's
saloon, he heard another shot farther down the street.
Four shots were heard, and the witness, who was a police
officer, states that when he came in front of the hotel he was
requested to arrest the prisoner, and that he ran towards the
corner where the prisoner was crossing and called to him to stop
and that he came back, and that they started up the street, when
the following conversation ensued:
"I said, 'Jack, I guess you have killed Dutch John.' He said,
'If I haven't, I will.' When they got in front of the hotel, I
asked him for his pistol. He handed me one, saying, 'That is Bill
Bean's;' and another, 'That is Dutch John's,' and a third one, a
single-barreled derringer, and said, 'This is mine.'"
One chamber was empty in the pistol identified as Dutch John's,
and three chambers were empty in the one identified as Bean's, and
the derringer was loaded.
Questions of the kind involved in the single assignment of error
to be reexamined cannot be understandingly determined without a
clear view of what the state of the case was at the
Page 93 U. S. 476
time the ruling was made, and inasmuch as it is the judgment of
the supreme court of the territory to which the writ of error is
addressed, it seems to be just and right that the reasons which
that court assigned for affirming the judgment of the subordinate
court should receive due consideration.
Enough appears to show that the prisoner insisted that the
evidence of uncommunicated threats should have been admitted,
because there is a conflict in the testimony as to who fired the
first shot, and that the evidence of the threats, if it had been
admitted, would have aided the jury in determining that question.
Influenced by that suggestion, the first step of the court
apparently was to examine the evidence reported in the transcript,
and, having come to the conclusion that there is no conflict in the
evidence as to who fired the first shot, they decided that the
ruling of the district court excepted to, in excluding the two
questions as to the threats, is correct.
Introductory to that conclusion, they find the facts to be that
the deceased was sitting upon a carriage step in front of the hotel
with his hands up to his face and his head bowed down, apparently
in a stupor or asleep, as the prisoner and the night watch came
near, and that the prisoner, as they were passing, jumped behind
the witness, and that the firing immediately commenced, the
testimony of two witnesses being that the firing was from east to
west, and that the prisoner was east of the deceased. Obviously
they regarded the statement of the witness, that he did not know
who fired the first shot, as merely negative testimony, for they
proceed to state that the positive testimony of the two witnesses,
that the firing was from east to west, showed that it was
impossible that the deceased should have fired the first shot.
In the next place, they advert to the statement that the
prisoner stooped down just after the shooting as if to pick up
something, and to the testimony of one of his witnesses, that he
exhibited a pistol shortly before his death; and they remark, that
the testimony, if no other facts were found, might tend to prove
that the deceased had a pistol in his possession, but that it would
not be sufficient to raise a doubt as to who fired the first
Even conceding the truth of the testimony, they still were
Page 93 U. S. 477
the opinion that the prisoner was the aggressor; but they
proceeded to say that they did not think that the deceased even had
a pistol, and gave their reasons for the conclusion as follows:
"His pistol was in the hands of the prisoner just before and
just after the killing, and if the deceased had a pistol, as one
witness testifies, shortly before his death, it is evident that he
did not have it when he was killed, for after the first shot he
threw up his arms and said, 'Do not kill me, I am unarmed,' a thing
which it is not reasonable to suppose he would have said if he had
just fired the first shot, and, besides, no such pistol was found
on his person or near him after the killing. . . . If the prisoner
had picked up an additional pistol, it would certainly have been
found upon him; but such was not the fact,"
and they add that "this second pistol, if any existed, could not
have been in the possession of the deceased when he was
Suppose the facts to be as found by the supreme court of the
territory, then it follows that there was no evidence in the case
tending to show that the deceased was the aggressor, or that the
act of homicide was perpetrated in self-defense, within the
principles of the criminal law as understood and administered in
any jurisdiction where our language is spoken.
Homicide, apparently unnecessary or willful, is presumed to be
malicious, and, of course, amounts to murder unless the contrary
appears from circumstances of alleviation, excuse, or
justification, and it is incumbent upon the prisoner to make out
such circumstances to the satisfaction of the jury, unless they
arise from the evidence produced against him by the prosecution.
Fost.Cr.L. 255; 1 East P.C. 224; 4 Bl.Com. 201; 1 Russ., C. &
M. (4th ed.) 483.
Cases arise, as all agree, where a person assailed may, without
retreating, oppose force to force, even to the death of the
assailant; and other cases arise in which the accused cannot avail
himself of the plea of self-defense, without showing that he
retreated as far as he could with safety, and then killed the
assailant only for the preservation of his own life. Fost.Cr.L.
275; 1 East P.C. 277; 4 Bl.Com. 184.
Courts and text writers have not always stated the rules of
decision applicable in defenses of the kind in the same forms
Page 93 U. S. 478
expression. None more favorable to the accused have been
promulgated anywhere than those which were adopted seventy years
ago in the trial of Selfridge for manslaughter. Pamph.Rep. 160.
Three propositions were laid down in that case:
1. That a man who, in the lawful pursuit of his business, is
attacked by another under circumstances which denote an intention
to take away his life or do him some enormous bodily harm, may
lawfully kill the assailant, provided he use all the means in his
power otherwise to save his own life or 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.
2. That when the attack upon him is so sudden, fierce, and
violent that a retreat would not diminish but increase his danger,
he may instantly kill his adversary without retreating at all.
3. That when, from the nature of the attack, there is reasonable
ground to believe that there is a design to destroy his life or to
commit any felony upon his person, the killing the assailant will
be excusable homicide, although it should afterwards appear that no
felony was intended.
Learned jurists excepted at the time to the third proposition,
as too favorable to the accused, but it is safe to affirm that the
legal profession have come to the conclusion that it is sound law,
in a case where it is applicable. Support to that proposition is
found in numerous cases of high authority, to a few of which
reference will be made.
When one without fault is attacked by another, under such
circumstances as to furnish reasonable ground for apprehending a
design to take away his life or do him some great bodily harm, and
there is reasonable ground for believing the danger imminent that
such design will be accomplished, the assailed may safely act upon
the appearances and kill the assailant, if that be necessary to
avoid the apprehended danger; and the killing will be justified,
although it may afterwards turn out that the appearances were
false, and that there was not in fact either design to do him
serious injury, or danger that it would be done. Shorter v.
2 Comst. 197; People v. McLeod,
1 Hill 420; 1
Hawk.P.C., ch. 9, sec. 1, p. 79.
Two other cases decided in the same state have adopted the same
rule of decision, and it appears to be well founded in reason
Page 93 U. S. 479
and justice. Patterson v. People,
46 Barb. 635;
People v. Sullivan,
3 Seld. 400; State v. Sloan,
47 Mo. 612; Whart. on Homicide, 212; State v. Baker,
Jones (N.C.) 272; Com. v. Drum,
58 Penn.St. 9.
Unless the party has reasonable ground of apprehension at the
time, the justification will fail, it being settled law that a bare
fear, unaccompanied by any overt act indicative of the supposed
intention, will not warrant the party entertaining such fears in
killing the other party by way of precaution, if there be no actual
danger at the time. 1 East P.C. 272; Ros.Crim.Ev. (7th Am. ed.)
768; State v. Scott,
4 Ired. 409; State v.
4 Jones 190; Dill v. State,
25 Ala. 15;
Dyson v. State,
26 Miss. 362; Holmes v. State,
Ala. 24; Carroll v. State,
Two grounds are assumed in support of the proposition that the
evidence of previous threats ought to have been admitted:
1. That it would have confirmed the other evidence introduced by
the prisoner to prove that he committed the act of homicide in
2. That it would have aided the jury in determining which of the
parties fired the first shot.
Remarks already made are sufficient to show that a bare fear of
danger to life, unaccompanied by any overt act or manifestation
indicative of a felonious intent to that effect, will not justify
the person entertaining such fears in killing the supposed
assailant. Such a defense is not made out unless all the conditions
of the proposition before explained concur in the immediate
circumstances which attend the act of homicide.
When a person apprehends that another, manifesting by his
attitude a hostile intention, is about to take his life or to do
him enormous bodily harm, and there is reasonable ground for
believing the danger imminent that such design will be
accomplished, he may, if no other practicable means of escape are
at hand, oppose force by force, and may even kill the assailant if
that be necessary to avoid the apprehended danger, but he must act
and decide as to the necessity and the force of the circumstances
at his peril, and with the understanding that his conduct is
subject to judicial investigation and review.
Apply that rule to the case before the court, and it is clear
that there was no evidence in the case tending to show that
Page 93 U. S. 480
the prisoner killed the deceased in self-defense. Proof to that
effect is entirely wanting, and every attending circumstance
disproves the theory, and shows that such a defense, if it was set
up in the court below, was utterly destitute of every pretence of
foundation, as appears from the following circumstances:
1. That the prisoner was not alone.
2. That when he, in company with the nigh -watchman, approached
the hotel, the deceased was sitting on the steps, asleep or in a
stupor, apparently unaware of their approach.
3. That the prisoner might have passed on, turned back, or stood
still in perfect safety.
4. That if he feared any thing, his needful protection was at
5. That the deceased neither spoke nor moved, and was as
harmless as if he had been inanimate matter.
6. That the prisoner, better than any one else except the
sleeping man, knew that the deceased was unarmed, because he, the
prisoner, had the pistol of the deceased in his own pocket. 1
Viewed in the light of the attending circumstances, it is
amazing that anyone can come to the conclusion that there is any
evidence tending to show that the prisoner, as a reasonable being,
could have believed that it was necessary to take the life of the
deceased in order to save his own life, or to save himself from
enormous bodily harm. Logue v. Com.,
38 Penn.St. 265.
Stronger evidence of express malice is seldom or never
exhibited, as appears from the fact that he continued to fire after
the wounded man threw up his hands and cried out, "Don't kill me, I
am unarmed," and also from the fact that when the police officer
remarked to him, "Jack, I guess you have killed Dutch John," he
said, "If I haven't, I will."
Testimony merely confirmatory of a proposition, wholly
unsupported by other evidence, is not admissible as substantive
evidence. Grant that and still it is insisted by the prisoner that
the evidence of previous threats made by the deceased should have
been admitted to confirm the evidence introduced by the prisoner,
to prove that the deceased fired the first shot.
Mere theories are not entitled to consideration unless they find
some support in the evidence. There is no evidence in the case
tending to show that the deceased fired the first shot,
Page 93 U. S. 481
or that he fired at all, or that he manifested any intention to
offer any violence whatever to the prisoner. Two witnesses testify
that the prisoner, when he jumped behind the night watchman, was
east of the deceased, and that the range of the firing was from
east to the west, fully justifying the conclusion of the court
below that it is impossible that the deceased should have fired the
Better reasons for the admissibility of the evidence must be
given than those suggested in the preceding propositions, else the
assignment of errors cannot be sustained, as it is clear that the
other evidence in the case discloses no real theory of defense
which the excluded testimony would tend to confirm.
Some stress is laid upon the fact that one witness testified
that the deceased showed him a pistol after he was ejected from the
saloon; but the answer to that, given by the court below, is quite
satisfactory, which is that the pistol of the deceased was in the
possession of the prisoner just before and immediately after the
killing, and that if the deceased had a pistol, as the witness
testified, it is evident he did not have it when he was killed, for
after the first shot he threw up his hands, and said, "Don't kill
me, I am unarmed." Declarations of the kind made in articulo
are competent evidence, and, there being nothing in the
case to contradict the statement, it is entitled to credit. 1
Greenl.Ev., sec. 156; Ros.Crim.Ev. (7th ed.) 30.
Four shots where fired, and when the prisoner was arrested
immediately after the homicide, he gave up three pistols to the
officer -- his own, the deceased's, and Bean's. There was one empty
chamber in the deceased's pistol, and three empty chambers in
Bean's, showing that the prisoner had been in no danger throughout,
except from the multiplicity of fire-arms which he had in his own
Attempt is next made in argument to show that evidence of
previous threats made by the deceased is admissible in behalf of
the prisoner, even though he did not introduce any other evidence
which it tends to confirm, the suggestion being that the modern
decisions support that proposition.
Criminal homicide, in order that it may amount to murder, must
have been perpetrated with malice aforethought, and the
Page 93 U. S. 482
prosecution, to prove the ingredient of malice, may introduce
evidence of lying in wait, antecedent menaces, former grudges, or
any formed design or concerted scheme to do the deceased bodily
harm. Malice is the essential criterion by which murder is
distinguished from manslaughter, and of course it must be charged
in the indictment and proved at the trial. Acts, conduct, and
declarations of the kind, if done or made by the prisoner, are
clearly admissible when offered by the prosecution, but the case is
generally different when the evidence is offered in respect to the
Years ago, evidence was offered, in a case of manslaughter, to
show that the deceased was well known by the defendant and others
as a drunken, quarrelsome man, but the court excluded the
testimony, holding to the effect that the evidence was immaterial,
as it constituted no defense to the accused. State v.
14 Me. 244.
Later, the defendant in another jurisdiction offered evidence to
prove that the deceased was a man of great muscular strength,
practiced in seizing persons by the throat in a peculiar way, which
would render them helpless and shortly deprive them of life, but
the court excluded the evidence, holding that the only evidence
which was relevant and material was the manner in which the
deceased assaulted the defendant at the time of the homicide.
Com. v. Mead,
12 Gray 169.
Decided cases too numerous for citation are reported in which it
is held that evidence of the bad character of the deceased is not
admissible in an indictment for felonious homicide, for the reason
that it cannot have any effect to excuse or palliate the offense.
Reported cases of an exceptional character may be found where it is
held that evidence of the dangerous character of the deceased may
be admitted to confirm other evidence offered by the prisoner, to
show that the killing was in self-defense. 2 Bishop, Crim.Proced.
(2d ed.) sec. 627.
Difficult questions also arise in other cases as to the
admissibility of previous threats made by the deceased. Judges and
text writers generally agree that such threats, not communicated to
the prisoner, are not admissible evidence for the defense, where
the charge is felonious homicide.
Courts of justice everywhere agree that neither the bad
Page 93 U. S. 483
character of the deceased nor any threats that he may have made
forfeits his right to life until, by some actual attempt to execute
his threats, or by some act or demonstration at the time of the
killing, taken in connection with such character and threats, he
induces a reasonable belief on the part of the slayer that it is
necessary to deprive him of life in order to save his own or to
prevent some felony upon his person. Prichett v. State,
Ala. 39; Com. v. Hilliard,
2 Gray 294.
Exceptional cases arise where it is held that the evidence
should be received as confirmatory of other evidence in the case
tending to support the theory that the killing was in self-defense.
Cases of that character may be found where courts have ruled that
evidence of the kind may be admitted, even though the prisoner had
no knowledge of the same at the time of the alleged felonious
homicide; but there is not a well considered case to be found
anywhere in which it is held that evidence of previous threats is
admissible as substantive proof that the act of homicide was
committed in self-defense, nor which shows that such evidence is
admissible for any purpose, whether the threats were known or
unknown to the prisoner, except to confirm or explain other
evidence in the case, tending to justify or excuse the homicidal
act, as having been committed in opposing force to force in defense
of life, or to avoid enormous bodily harm. 2 Whart.Cr.L. (6th ed.)
1020; 1 Hale P.C. 481.
Provided the uttering of the threats was known to the prisoner,
the tendency of modern decisions is to admit the evidence, even if
the other evidence to support the theory of self-defense is slight,
and to exclude it in all cases where the threats have not been
communicated, unless the circumstances tend strongly to inculpate
the deceased as the first aggressor. People v. Lamb,
Keyes 466; Powell v. State,
19 Ala. 577; Dupree v.
Examples almost without number are found in the reported cases,
which support those propositions, to a few of which reference will
Violent threats were made by the deceased against the prisoner
in the case of Stokes v. People,
53 N.Y. 174, and the
court held that proof of the same was admissible, whether
Page 93 U. S. 484
known to the prisoner or not, inasmuch as other evidence had
been given making it a question for the jury whether the homicidal
act was or was not perpetrated by the prisoner in defending himself
against an attempt of the deceased to take his life or to commit a
felony upon his person.
Authorities to show that fear only is not sufficient to justify
the taking of the life of another have already been referred to, of
which there are many more. State v. Collins,
32 Ia. 38;
Pursuant to that rule, it was held in the case of Newcomb v.
37 Miss. 400, that the belief on the part of the
accused that the deceased designed to kill him is no excuse for the
homicidal act, unless the deceased at the time made some attempt to
execute such a design, and thereby induced the accused reasonably
to believe that he intended to do so immediately. Hence, the court
held that it was not competent for the accused to introduce
evidence of an assault that the deceased committed on him six weeks
before, nor to give evidence of previous uncommunicated threats,
the other evidence showing that the deceased at the time of the
killing made no hostile demonstration against the accused
calculated to show that the accused was in any danger of life or
Actual danger of the kind, or a reasonable belief of such actual
danger, must exist at the time, else the justification will fail.
Repeated threats, even of a desperate and lawless man, will not and
ought not to authorize the person threatened to take the life of
the threatener, nor will any demonstration of hostility, short of a
manifest attempt to commit a felony, justify a measure so
Reasonable doubt upon that subject cannot be entertained, but
the Supreme Court of Kentucky decided that where one's life had
been repeatedly threatened by such an enemy, and it appeared that
he had recently been exposed to an attempt by the same person to
assassinate him, and that the previous threats were continued, the
person threatened might still go about his lawful business, and if
on such an occasion he happened to meet the threatener, having
reason to believe him to be armed and ready to execute his
murderous intention, and if he did so believe, and from the
threats, the previous attempt at assassination,
Page 93 U. S. 485
the character of the man, and the circumstances attending the
meeting, he had a right to believe that the presence of his
adversary put his life in imminent peril, and that he could secure
his personal safety in no other way than to kill the supposed
assailant, he was not obliged to wait until he was actually
assailed. Bohammon v. Com.,
8 Bush 488.
Beyond all doubt, that is the strongest case to support the
theory set up for the prisoner in this case to be found in the
judicial reports, and yet it is obvious that it does not make an
approach to what is necessary to constitute a defense for the crime
charged against the prisoner in the indictment.
Except where threats are recent and were accompanied by acts and
conduct indicative of an intention to execute the threatened
purpose, the evidence of previous threats is not admitted by the
Supreme Court of Arkansas. Atkins v. State,
16 Ark. 584;
Pitman v. State,
Where the evidence of previous threats is necessary in
connection with the other evidence to make out a case of
self-defense, the Supreme Court of Indiana hold that the evidence
is admissible. Holler v. State,
37 Ind. 61.
Jurists and text writers appear to concur that antecedent
threats alone, whether communicated or not, will not justify a
subsequent deadly assault by the other party unless the party who
made the previous threats manifests, at the time of the act, a
design to carry the threats into immediate effect. People v.
37 Cal. 683.
Argument to establish that proposition seems to be unnecessary
in this case, as the legislature of the territory have enacted that
a bare fear that a felony is about to be committed "shall not be
sufficient to justify the killing" in such a case.
"It must appear that the circumstances were sufficient to excite
the fears of a reasonable person, and that the party killing really
acted under the influence of those fears, and not in a spirit of
showing that the court below could not have decided otherwise
than they did without violating the statute law of the territory.
Laws Utah, p. 60, sec. 112.
Weighed in the light of the adjudged cases, it is clear that the
evidence of previous uncommunicated threats is never admitted in
the trial of an indictment for murder, unless it
Page 93 U. S. 486
appears that other evidence has been introduced tending to show
that the act of homicide was committed in self-defense, and that
the evidence of such threats may tend to confirm or explain the
other evidence introduced to establish that defense.
Society, in my opinion, is deeply interested that criminal
justice shall be accurately and firmly administered, and, being
unable to concur in the opinion and judgment of the court in this
case, I have deemed it proper to state the reasons for my