On the trial of a person indicted for murder, although the
evidence may appear to the court to be simply overwhelming to show
that the killing was in fact murder, and not manslaughter or an act
performed in self defense, yet so long as there is evidence
relevant to the issue of manslaughter, its credibility and force
are for the jury, and cannot be matter of law for the decision of
the court.
A review of the evidence at the trial of the defendant
(plaintiff in error) in the court below shows that there was error
in the refusal of the court of the request of the defendant's
counsel to submit the question of manslaughter to the jury.
The case is stated in the opinion.
Page 162 U. S. 314
MR. JUSTICE PECKHAM delivered the opinion of the Court.
The plaintiff in error was indicted in the United States circuit
court for the Eastern District of Texas at the term commencing on
the 20th of November, 1893. The indictment charged the defendant
with the crime of murder in killing one Joe Gaines on the 22d of
August, 1893, in Pickens County, in the Chickasaw Nation in the
Indian Territory, the same being annexed to and constituting a part
of the Fifth Circuit, and annexed to and constituting a part of the
Eastern District of Texas for judicial purposes. The defendant was
tried at the circuit court held for the Eastern District of Texas
in April, 1895, and was convicted by the jury of murder as charged
in the indictment, and sentenced to be hanged. He then sued out a
writ of error from this Court. It will be necessary to notice but
one exception taken by counsel for the plaintiff in error upon the
trial. After the evidence was in, he requested the court to submit
to the jury a charge upon manslaughter,
"but the court refused to submit that issue to the jury, to
which action of the court in failing and refusing to submit to the
jury such charge the defendant at the time excepted."
The question is whether the court erred in refusing this
request. The evidence as to manslaughter need not be uncontradicted
or in any way conclusive upon the question. So long as there is
some evidence upon the subject, the proper weight to be given it is
for the jury to determine. If there were any evidence which tended
to show such a state of facts as might bring the crime within the
grade of manslaughter, it then became a proper question for the
jury to say whether the evidence were true and whether it showed
that the crime was manslaughter instead of murder. It is difficult
to think of a case of killing by shooting where both men were armed
and both in readiness to shoot, and where both did shoot, in which
the question would not arise for the jury to answer whether
Page 162 U. S. 315
the killing was murder or manslaughter or a pure act of
self-defense. The evidence might appear to the court to be simply
overwhelming to show that the killing was in fact murder, and not
manslaughter or an act performed in self-defense, and yet so long
as there was some evidence relevant to the issue of manslaughter,
the credibility and force of such evidence must be for the jury,
and cannot be matter of law for the decision of the court.
By § 1035 of the Revised Statutes of the United States, it is
enacted that
"in all criminal causes, the defendant may be found guilty of
any offense the commission of which is necessarily included in that
with which he is charged in the indictment, or may be found guilty
of an attempt to commit the offense so charged,
provided
that each attempt be itself a separate offense."
Under this statute, the defendant charged in the indictment with
the crime of murder may be found guilty of the lower grade of
crime,
viz., manslaughter. There must, of course, be some
evidence which tends to bear upon that issue. The jury would not be
justified in finding a verdict of manslaughter if there were no
evidence upon which to base such a finding, and in that event the
court would have the right to instruct the jury to that effect.
Sparf v. United States, 156 U. S. 51.
The ruling of the learned judge was to the effect that in this
case, the killing was either murder or else it was done in the
course of self-defense, and that under no view which could possibly
be taken of the evidence would the jury be at liberty to find the
defendant guilty of manslaughter. The court passed upon the
strength, credibility, and tendency of the evidence, and decided as
a matter of law what it seems to us would generally be regarded as
a question of fact --
viz., whether, under all the
circumstances which the jury might from the evidence find existed
in the case, the defendant was guilty of murder, or whether he
killed the deceased not in self-defense, but unlawfully and
unjustly, although without malice. The presence or absence of
malice would be the material consideration in the case provided the
jury should reject the theory of self-defense, and yet this
question of fact
Page 162 U. S. 316
is, under the evidence in the case, determined by the trial
court as one of law, and against the defendant
A review of some of the evidence stated in the bill of
exceptions is necessary in order to discover whether there was
justification for this holding by the learned judge. It may be
premised that we do not give very much of the evidence tending to
show malice in the defendant, and that which tended to show an
intentional and deliberate murder of the deceased by him. We give
only so much of the evidence as is necessary to permit an
intelligent view of the transaction, and of that portion of the
evidence in addition which might be regarded as tending to show
that the defendant was only guilty of manslaughter, and not of
murder. If there were some appreciable evidence upon that subject,
its proper weight and credibility were for the jury.
There was evidence tending to show the following facts: the
deceased was a deputy United States marshal. One B. D. Davidson was
a lawyer by profession, and a commissioner of the United States for
one of the territorial courts. On the 22d of August, 1893, Davidson
was at Paul's Valley, in the Indian Territory. He knew the
defendant, and he was also acquainted with Joe Gaines, the
deceased. Davidson saw the defendant in the evening of that day at
his (Davidson's) hotel. A man named George Mitchell had been bound
over by Davidson, and had failed to give a proper bond, and
Mitchell came to him and asked if he would take John Stevenson, the
plaintiff in error, on the bond. Davidson told him he would if
Stevenson could justify. Mitchell left, and soon thereafter brought
Stevenson around, who told Davidson he had some personal property
-- he didn't know what it was, exactly -- but it did not amount to
$500 above exemptions and liabilities. Davidson told him he would
have to schedule other property, and plaintiff in error thought he
ought to take a farm he had, and did not like Davidson's refusal,
and went off. That same night, after supper, and about 9 o'clock,
while Davidson was talking with other persons, plaintiff in error
came to the door and commenced cursing and abusing Davidson,
saying, as Davidson testified, "everything he could put
Page 162 U. S. 317
his tongue to." Stevenson left, still cursing, and went south,
and he could be heard as he went away cursing and swearing. Gaines,
the deceased, soon thereafter came into the room in the hotel where
Davidson was, and asked what all "this racket or fuss was about."
Davidson told him, and Gaines said, "I will go and arrest him, and
stop him." He said he "would arrest him, and hold him until
morning," and went out for that purpose. Davidson heard some loud
talking on the street soon after, and went out of his house, and
saw Gaines and Stevenson and a lady, who he was told was
Stevenson's wife, standing on the platform in front of the hotel
talking, and Davidson passed by them and went on. He returned to
the hotel soon after this, and in about a half hour he heard two
shots fired, and Gaines, the deceased, got up and walked across to
the north side of the room, where he and Davidson were sitting, and
picked up his pistol from a sewing machine, where he always kept
it, and said he would go and "get him, and fasten him, and keep him
in charge, and not release him any more." He then walked out of the
house, and in about two minutes two shots were heard. Davidson then
started to go, and someone prevented him. He soon afterwards saw
Gaines, the deceased, when brought to the hotel dead. He had two
wounds -- one in his arm, the other in the breast. His coat sleeve
had the appearance of being powder burned. This is the substance of
Davidson's evidence.
Another witness says that soon after Gaines left Davidson's room
for the purpose of arresting Stevenson, he (Gaines) and the
plaintiff in error were seen together. It was about 9 o'clock,
after dark. They were standing on the sidewalk, back of Underwood's
drugstore. When the witness first heard Stevenson speak, the latter
said: "Don't draw that pistol. If you do, I will cut you."
Stevenson and the deceased were standing on the sidewalk then. The
witness walked into the middle of the street, and said to
Stevenson, "John, put up your knife, and go home, and behave
yourself." They then walked over to where the witness was,
Stevenson holding with his left hand to Gaines� right arm.
Stevenson was holding a knife in his right hand. After they came
over to
Page 162 U. S. 318
where witness was,
"Stevenson turned the officer loose, and, as soon as he turned
loose of Mr. Gaines, and started off, Gaines drew his pistol on
him, and told Stevenson to drop his knife or he would kill him. He
walked a step or two towards Gaines."
Witness said:
"John, for God's sake, throw your knife down, or he will kill
you. . . . Stevenson dropped his knife, and Gaines told me [the
witness] to take hold of him. I picked up the knife, and then took
hold of him. Gaines and defendant kept quarreling. Gaines said,
'John, I am determined to take you.' And Stevenson said, 'All
right, I will go with you.'"
They went along quietly, and witness went back to the drugstore.
He was there some ten or fifteen minutes, and saw Stevenson and his
wife go back down the street from the direction of the hotel, and
heard defendant say, "Smith, give me your gun." Smith told him he
did not have any. Stevenson said, "I will go home, and get my
Winchester, and come back, and I will make the son of a bitch hide
out." In about thirty minutes after this, the witness heard two
shots in quick succession at the billiard hall. He opened the
barbershop door and saw Gaines lying in the street, flat on his
back. He gasped once after witness got to him, and died. This
witness says that at the time "Gaines threw his pistol down on
Stevenson," at the interview had just before they separated, and
shortly before the killing,
"Stevenson had turned and was walking off from Gaines, and,
while Stevenson had hold of the officer, I heard him say to the
officer, 'Don't draw that gun, or I will cut you.'"
Immediately after the first altercation had taken place between
the parties and they had separated, the plaintiff in error went
into a saloon and called for cider, and wanted everybody to come up
and drink. He made a general invitation. At that time, he seemed,
as the witness described it, "to be excited and mad." He had his
gun in several positions, and just before the killing had it in his
right hand. This was within a very few minutes after the first
altercation took place. While the plaintiff in error was still in
the saloon, and after he had given a general invitation to come up
and
Page 162 U. S. 319
drink the cider, and while standing near the counter, the
deceased, in the language of one witness,
"approached the cider joint. He was coming very rapidly. As he
ran up to the light, he had his six-shooter in both hands in
shooting position. He ran right up to the door without saying a
word, pushed the six-shooter in, and fired. He fired instantly. He
did not halt a moment. He did not say a word. Immediately after
this, I heard a report from the inside of the house. The two shots
were far enough apart that I could distinguish between them. Gaines
fired the first shot. I think the wound in Gaines' arm was made
when he had the pistol in both hands. Don't see how it could have
been done otherwise."
Another witness testified: "The ball from Gaines' pistol
imbedded in the counter, missing Stevenson five or six inches."
The testimony of another witness was as follows:
"I was in Paul's Valley the night of the shooting. I saw the
deceased at the Underwood drugstore about half an hour before the
killing. Deceased said, 'I thought I would stay a few minutes, and
maybe Stevenson will come back.' He says, 'I ought to have killed
the son of a bitch when he was here awhile ago, and if he comes
back, I am going to kill him.' I was at Bandy's saloon. Saw the
deceased as he approached. Saw one shot fired. Deceased came, not
in a run, but in a kind of trot, with his pistol in both hands. As
he approached the door in a trot, he threw his pistol in and fired.
He said nothing. I did not see where the defendant was standing at
the time of the shooting. He had ordered cider just a moment
before. I heard two shots close together. The first came from the
pistol; after that another shot from the inside."
This is a portion of, but not all, the evidence given upon the
trial tending to show the circumstances under which the killing was
done. Was there enough, in any view that could be taken of such
evidence, to require the submission of the question of manslaughter
to a jury? We think there was, and the request of counsel for
plaintiff in error to submit that issue to the jury should have
been granted. We do not mean to intimate an opinion as to what the
jury ought to find upon
Page 162 U. S. 320
such evidence, taken in connection with all the other evidence
in the case, but it seems to us entirely clear that there was
enough to ask the jury to decide whether the killing was, upon all
the evidence in the case, murder or manslaughter. The jury should
have been permitted to determine the credibility of the evidence,
as above detailed, and, if true, whether the effect of the conduct
of the deceased in shooting, as he did, into the saloon, and
considering all the circumstances of the case was such as naturally
tended to and did excite in the mind of the plaintiff in error a
sudden passion, either of rage or fear, and under the influence of
which he fired the shot and killed the deceased willfully and
unlawfully, but at the same time without malice. If he thus fired
the pistol, would not a jury have the right to say that the
consequent killing was manslaughter, instead of murder? Is it not
clearly a question of fact for a jury to determine just what the
mental condition of plaintiff in error was in regard to malice?
Manslaughter, at common law, was defined to be the unlawful and
felonious killing of another without any malice, either express or
implied. Wharton's American Criminal Law, 8th ed., � 304. Whether
there be what is termed "express malice" or only implied malice,
the proof to show either is of the same nature --
viz.,
the circumstances leading up to and surrounding the killing. The
definition of the crime given by § 5341 of the Revised Statutes of
the United States is substantially the same. The proof of homicide,
as necessarily involving malice, must show the facts under which
the killing was effected, and, from the whole facts and
circumstances surrounding the killing, the jury infers malice or
its absence. Malice in connection with the crime of killing is but
another name for a certain condition of a man's heart or mind, and
as no one can look into the heart or mind of another, the only way
to decide upon its condition at the time of a killing is to infer
it from the surrounding facts, and that inference is one of fact
for a jury. The presence or absence of this malice or mental
condition marks the boundary which separates the two crimes of
murder and manslaughter. As we have already said, there may be a
case of killing by shooting where the
Page 162 U. S. 321
facts necessarily show malice, but, taking all the evidence in
this case, we think it was one for the jury to determine upon the
issue of manslaughter.
In
Brown v. United States, 159 U.
S. 100, MR. JUSTICE HARLAN, when speaking of an affray
in which the plaintiff in error was charged with having murdered a
man, stated that
"the verdict of guilty of manslaughter or murder should not have
turned, alone, upon an inquiry as to the way in which the killing
was done. The inquiry, rather, should have been whether, at the
moment the defendant shot, there were present such circumstances,
taking all of them into consideration, including the mode of
killing, as made the taking of the life of the deceased
manslaughter, and not murder."
Who is to make the inquiry -- the court or the jury under proper
instructions from the court? There might be cases where the
uncontradicted evidence was so clear and overwhelming of a
deliberate purpose involving malice that a court might be justified
in stating to the jury, if they found the evidence to be true, they
ought to infer malice, but this is not such a case.
In this case, the plaintiff in error was fresh from an
altercation with the deceased, the one having a knife and the other
a pistol, and each had threatened to use his weapon upon the other.
The plaintiff in error, by reason of the previous circumstances,
was laboring under great excitement at the saloon, and, as one of
the witnesses says, "seemed to be mad." The deceased came up to the
saloon door, and at once shot his pistol into the room, and the
bullet came within a few inches of the head of the plaintiff in
error, who immediately fired his rifle in the direction of the
deceased. The ruling of the trial judge in effect was to say that
as matter of law there was nothing in all this evidence, if true,
which would permit the jury to find that the plaintiff in error,
when he fired his rifle, was so much under the influence of sudden
passion, caused by these circumstances and by this assault upon
him, as not to have been actuated by that malice which the law
defines as a necessary ingredient in the crime of murder. Is it
perfectly plain and clear,
as a conclusion of law, that
shooting at another, under circumstances such as were detailed
by
Page 162 U. S. 322
some of the witnesses in this case, can have no tendency to
raise within the mind of the person thus assaulted such a sudden
passion of anger or terror as to deprive his subsequent act of that
malice which is necessary to make it murder? If it is not to be so
asserted as matter of law, then it becomes a question of fact in
such case, and that question must be answered by the jury. Whether
the witnesses told the truth in regard to such circumstances is not
for the court to say, nor is it for the court to decide upon the
weight to be given to them, if proper for the consideration of the
jury.
It is objected that while the evidence above set forth was
proper to be submitted to the jury upon the issue of self-defense,
it was not of that character to even raise an issue as to the grade
of the crime if the theory of self-defense were not sustained. We
do not see the force of the objection. The fact that the evidence
might raise an issue as to whether any crime at all was committed
is not in the least inconsistent with a claim that it also raised
an issue as to whether or not the plaintiff in error was guilty of
manslaughter instead of murder. It might be argued to the jury,
under both aspects, as an act of self-defense, and also as one
resulting from a sudden passion and without malice. The jury might
reject the theory of self-defense, as they might say the shot from
the pistol of the deceased had already been fired, and the
plaintiff in error had not been harmed, and therefore firing back
was unnecessary, and was not an act of self-defense. But why should
the other issue be taken from the jury, and they not be permitted
to pass upon it as upon a question of fact?
It seems to us quite plain that an assault upon another by means
of firing a pistol at him is naturally calculated to excite some
kind of passion in the one upon whom such an assault is made. It
might be one of anger or it might be terror. If either existed to a
sufficient extent to render the mind of a person of ordinary temper
incapable of cool reflection, it might be plausibly claimed that
the act which followed such an assault was not accompanied by the
malice necessary to constitute the killing murder. Whether such a
state of mind existed in this case, and whether the plaintiff in
error fired the
Page 162 U. S. 323
shot under the influence of passion, and without malice, cannot
be properly regarded as a question of law.
A judge may be entirely satisfied from the whole evidence in the
case that the person doing the killing was actuated by malice, that
he was not in any such passion as to lower the grade of the crime
from murder to manslaughter by reason of any absence of malice, and
yet, if there be any evidence fairly tending to bear upon the issue
of manslaughter, it is the province of the jury to determine from
all the evidence what the condition of mind was, and to say whether
the crime was murder or manslaughter.
It is also objected that as all the testimony is not set forth
in the bill of exceptions, it must be assumed there was some which
was given on the trial that would show there was no issue of
manslaughter in the case. The evidence which has been returned
does, in our opinion, show the existence of such an issue, and if
there were other and further evidence of a different nature which
is not in the bill of exceptions, the question as to which should
be credited was for the jury, and should not have been taken from
it by the court. The plaintiff in error may have been guilty of
murder. There was certainly sufficient evidence on that issue to
render it necessary to submit it to the jury. We have no power and
no inclination to pass upon that question of fact. We only decide
that the question as to the grade of the crime, whether murder or
manslaughter, should have been submitted to the jury, as well as
the question of self-defense.
For the error in refusing to do so, the judgment of conviction
must be
Reversed, and the cause remanded to the court below, with
instructions to grant a new trial.