164 U.S. 492
December 7, 1896. [164 U.S. 492, 493] Sol. Gen. Conrad, for defendant in error.
Mr. Justice BROWN delivered the opinion of the court.
This was a writ of error to a judgment of the circuit court of the United States for the Western district of Arkansas sentencing the plaintiff in error to death for the murder of Philip [164 U.S. 492, 494] Henson, a white man, in the Cherokee Nation of the Indian Territory. The defendant was tried and convicted in 1893, and, upon such conviction being set aside by this court ( 150 U.S. 551 , 14 Sup. Ct. 196), was again tried and convicted in 1894. The case was again reversed ( 157 U.S. 675 , 15 Sup. Ct. 720), when Allen was tried for the third time, and convicted, and this writ of error was sued out.
The facts are so fully set forth in the previous reports of the case that it is unnecessary to repeat them here.
We are somewhat embarrassed in the consideration of this case by the voluminousness of the charge, and of the exceptions taken thereto, as well as by the absence of a brief on the part of the plaintiff in error; but the principal assignments of error set forth in the record will be noticed in this opinion.
1. The third assignment of error is taken to certain language in the charge, the material portion of which is as follows:
The learned judge was stating in this connection the theory of the prosecution, and, if the facts were as stated by the [164 U.S. 492, 495] Ernes, there was no error in saying to the jury, not that they were bound to, but that they were at liberty to, infer not only willfulness, but malice aforethought.
2. The fourth assignment was to the following language:
The substance of this instruction is that the intent necessary to constitute malice aforethought need not have existed for any particular time before the act of killing, but that it may spring up at the instant, and may be inferred from the fact of killing. This is within the authorities as applied to the common-law crime of murder, though where the crime is classified, as in some states, proof of deliberate premeditation is necessary to constitute murder in the first degree. U. S. v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,868; People v. Clark, 7 N. Y. 385; Whart. Hom . 33; Whart Cr. Law (10th Ed.) 117. [164 U.S. 492, 496] 3. The sixth assignment is to the following language:
This is nothing more than a statement of the familiar proposition that every man is presumed to intend the natural and probable consequences of his own act. 1 Greenl. Ev. 18; Reg. v. Jones, 9 Car. & P. 258; Reg. v. Hill, 8 Car. & P. 274; Reg. v. Beard, Id. 143; People v. Herrick, 13 Wend. 87, 91.
4. The eighth assignment is taken to the following definition of manslaughter:
There is no error in this instruction. It is well settled by the authorities that mere words, however aggravating, are not sufficient to reduce the crime from murder to manslaughter. Com. v. York, 9 Metc. (Mass.) 93, 103; Whart. Hom. 393; Whart. Cr. Law (10th Ed.) 455a.
5. The ninth alleged error turned upon the statement made by the court of the circumstances under which the killing would be justifiable:
It is clear that to establish a case of justifiable homicide it must appear that something more than an ordinary assault was made upon the prisoner; it must also appear that the assault was such as would lead a reasonable person to believe that his life was in peril. Wallace v. U. S., 162 U.S. 466 , 16 Sup. Ct. 859.
Nor is there anything in the instruction of the court that the prisoner was bound to retreat as far as he could before slaying his assailant that conflicts with the ruling of this court in Beard v. U. S., 158 U.S. 550 , 15 Sup. Ct. 962. That was the case of an assault upon the defendant upon his own premises, and it was held that the obligation to retreat was no greater than it would have been if he had been assailed in his own house. So, too, in the case of Alberty v. U. S., 162 U.S. 499 , 16 Sup. Ct. 864, the defendant found the deceased trying to obtain access to his wife's chamber through a window, in the nighttime, and it was held that he might repel the attempt by force, and was under no obligation to retreat if the deceased attacked him with a knife. The general duty to retreat, instead of killing, when attacked, was not touched upon in these cases. Whart. Hom. 485.
6. The fourteenth assignment is to the following language of the court upon the subject of the flight of the accused after the homicide: 'Now, then, you consider his conduct at the time of the killing and his conduct afterwards. If he fled, if he left the country, if he sought to avoid arrest, that is a fact that you are to take into consideration against him, because the law says, unless it is satisfactorily explained,- and he may explain it upon some theory, and you are to say whether there is any effort to explain it in this case,-if it is unexplained, the law says it is a fact that may be taken into account against the party charged with the crime of murder upon the theory that I have named, upon the existence of this monitor [164 U.S. 492, 499] called conscience, that teaches us to know whether we have been right or wrong in a given case.'
In the case of Hickory v. U. S., 160 U.S. 408, 422 , 16 S. Sup. Ct. 327, 332, where the same question, as to the weight to be given to flight as evidence of guilt, arose, the court charged the jury that: 'The law recognizes another proposition as true, and it is that 'the wicked flee when no man pursueth, but the innocent are as bold as a lion.' That is a self-evident proposition that has been recognized so often by mankind that we can take it as an axiom, and apply it to this case.' It was held that this was error, and was tantamount to saying to the jury that flight created a legal presumption of guilt, so strong and conclusive that it was the duty of the jury to act on it as an axiomatic truth. So, also, in the case of Alberty v. U. S., 162 U.S. 499, 509 , 16 S. Sup. Ct. 864, 868, the court used the same language, and added that from the fact of absconding the jury might infer the fact of guilt, and that flight was a silent admission by the defendant that he was unwilling or unable to face the case against him, and was in some sense, feeble or strong, as the case might be, a confession. This was also held to be error. But in neither of these cases was in intimated that the flight of the accused was not a circumstance proper to be laid before the jury as having a tendency to prove his guilt. Several authorities were quoted in the Hickory Case (page 417, 160 U. S., page 330, 16 Sup. Ct.) as tending to establish this proposition. Indeed, the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt. Whart. Hom. 710; People v. Pitcher, 15 Mich. 397.
This was the substance of the above instruction, and, although not accurate in all its parts, we do not think it could have misled the jury.
7. In the fifteenth assignment exception is taken to the following instruction: 'You will understand that your first duty in the case is to reject all evidence that you may find to be false; all evidence that you may find to be fabricated, because it is worthless; and if it is purposely and intentionally invoked by the defendant it is evidence against him; it is the basis for [164 U.S. 492, 500] a presumption against him, because the law says that he who resorts to perjury, he who resorts to subornation of perjury, to accomplish an end, this is against him, and you may take such action as the basis of a presumption of guilt.' There was certainly no error in instructing the jury to disregard evidence that was found to be false; and the further charge that false testimony, knowingly and purposely invoked by defendant, might be used against him, is but another method of stating the principle that the fabrication of testimony raises a presumption against the party guilty of such practice. 1 Phil. Ev. 448; State v. Williams, 1 Williams' Vt. 724; 3 Russ. Crimes (6th Ed.) 358.
8. The sixteenth assignment was to the refusal of the court to charge the jury that, where there is a probability of innocence, there is a reasonable doubt of guilt. In the case of Coffin v. U. S., 156 U.S. 432, 452 , 15 S. Sup. Ct. 394, 402, it was held that a refusal of the court to charge the jury upon the subject of the presumption of innocence was not met by a charge that they could not convict unless the evidence showed guilt beyond a reasonable doubt.
In the case under consideration, however, the court had already charged the jury that they could not find the defendant guilty unless they were satisfied from the testimony that the crime was established beyond a reasonable doubt; that this meant: 'First. That a party starts into a trial, though accused by the grand jury with the crime of murder, or any other crime, with the presumption of innocence in his favor. That stays with him until it is driven out of the case by the testimony. It is driven out of the case when the evidence shows beyond a reasonable doubt that the crime as charged has been committed, or that a crime has been committed. Whenever the proof shows beyond a reasonable doubt the existence of a crime, then the presumption of innocence disappears from the case. That exists up to the time that it is driven out in that way by proof to that extent.' The court, having thus charged upon the subject of the presumption of innocence, could not be required to repeat the charge in a separate instruction at the request of the defendant. [164 U.S. 492, 501] 9. The seventeenth and eighteenth assignments were taken to instructions given to the jury after the main charge was delivered, and when the jury had returned to the court, apparently for further instructions. These instructions were quite lengthy, and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, unon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. These instructions were taken literally from a charge in a criminal case which was approved of by the supreme court of Massachusetts in Com. v. Tuey, 8 Cush. 1, and by the supreme court of Connecticut in State v. Smith, 49 Conn. 376, 386.
While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror shoud not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally [164 U.S. 492, 502] honest and intelligent as himself. There was no error in these instructions.
Several other assignments were made, to which it is unnecessary to call attention.
For the reasons above stated, the judgment of the court below will be affirmed.