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160 U.S. 203
December 16, 1895. [160 U.S. 203, 204] John Allison, some 20 years old, was indicted for the murder of his father, William Allison, on the 5th day of January, 1895, at the Cherokee Nation in the Indian country, in the Western district of Arkansas, found guilty by a jury, under the instructions of the court, and sentenced to be hanged, whereupon he sued out this writ of error.
The evidence tended to show that the Allisons resided, up to the year 1893, in the state of Washington; that the parents had been divorced; that the father had repeatedly threatened the lives of the members of his family, and for an assault upon one of his sons and his son-in-law, by shooting at them with a pistol, had been sent to the penitentiary for a year; and that thereupon the family left the state of Washington, and came to the Indian country. In about a year the father appeared, first at Hot Springs, Ark., where one daughter had located, and then in the neighborhood of the other members of the family in the Indian country; and at once began threatening the lives of the entire family, and particularly that of his son John. A great variety of vindictive threats by the deceased in Washington, at Hot Springs, and in the Indian country was testified to.
Evidence was also adduced that on one occasion he came to the house where the mother and her children were living, and demanded to see the children, who (except John, and one whom he had seen) were not at home, and he then wished to see their mother, who objected to meeting him; that he persisted, whereupon his son John, who had a gun in his hand, told him he must leave, and the father dared John to come out, and he would fight him outside, but John answered that he did not want any trouble with him, only wanted him to stay away from there, and the deceased replied, 'God damn you! I will go off and get a gun, and kill the last damned one of you;' that he subsequently told his son-in-law to tell John Allison [160 U.S. 203, 205] 'that he would blow his God damned brains out the first time he seen him; told him to tell him he would kill his mother and the entire family;' that the day after this occurrence John Allison and his mother made an affidavit to get a peace warrant for William Allison, and on that occasion John told the prosecuting attorney that the old man threatened his life, and he thought he was in danger, and asked him if he killed the old man what would be done with him, and he replied that 'if the old man came to his house, and raised a racket, and tried to carry out his threats, that he told me he had made on him, I told him he would be justified in doing it,' but that he must not go 'hunting the old man up, and trying to kill him,' and that John said, 'I will not bother him; if he will let me alone, I will let him alone;' and that this was five or six days before the killing. The evidence further tended to show that the deceased had been in the habit of carrying a pistol; that he stated that he had one; that on New Year's day he threatened one of the witnesses with that weapon, and another witness testified to catching a glimpse of it once when he put his hand around to his hip pocket; but that he had no pistol on him when he was killed. The deceased was staying at the house of one Farris, and a witness testified in rebuttal to conversing with John when he was 'warming' on one occasion at the barn,-presumably Farris' barn,-and asking him why he did not go up to the house, and he said he did not want to go up there; that he was afraid he and his father would have some trouble; that he was afraid his father would hurt him; and that he was going to kill him just as quick as he caught him away from the house.
As to the circumstances immediately surrounding the homicide, the defendant testified that he and a man by the name of Rucker had killed a deer near Rucker's the day before, and that he had promised Rucker to come back the next day to hunt for others, and was riding by Farris' place, which was on the road to Rucker's, with his gun in his hand, on that errand, on the morning of January 5th, when he saw a person whom he took to be his brother Jasper up at Farris' house; [160 U.S. 203, 206] that this person turned out to be Farris with his brother's coat on; but he stopped at the stable, thinking that his brother would come down that way, as he had learned from his sister that his brother was to be at the place at that time for the purpose of removing some household goods; that he did not go up to the house, because he did not want to meet his father; that shortly after he arrived at the barn his father came through the gate, and he stepped to one side, to let him go into the barn if he wished to, but deceased did not go towards the door, came straight towards him, and when he got a few feet from him said, 'You have got it, have you?' and threw his hand back as if he was going to get a pistol,-'made a demonstration that way,'-and that this demonstration and the threats he had made led defendant to believe that he was going to draw a pistol, and he fired; that he fired three shots, but none after the deceased fell. Defendant was corroborated by Rucker and others in many particulars, but contradicted by the government's witnesses in respect of firing after his father was down; they testifying that he fell at the first shot.
W. M. Cravens, for plaintiff in error.
Mr. Whitney, Asst. Atty. Gen., for the United States.
Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.
It is claimed on behalf of defendant that the homicide was excusable, because committed in self-defense, in that, his life having been repeatedly threatened by deceased, when he saw him on this occasion moving his hand as if to take a pistol from his hip pocket, he believed, and as a prudent man might reasonably have believed, at that time, and under those circumstances, that he was in imminent and deadly peril, which could only be averted by the course he pursued; or that, at the most, he could only be found guilty of manslaughter for acting under an unreasonable access of fear, but without malice.
The threats were conceded, and there was evidence that [160 U.S. 203, 207] the deceased was in the habit of carrying a pistol; that he had recently carried one in his hip pocket; that he had sent word to defendant that he should kill him on sight; that defendant had started on a hunting expedition that morning, and that his stopping at Farris' place was accidental; but the facts that he at first stepped away from his father, and that the latter advancedon him, and made the threatening demonstration as if to draw a pistol, which the defendant knew he was accustomed to have upon him, apparently depended on defendant's testimony alone. The question for the jury to determine from all the facts and circumstances adduced in evidence was the reasonableness of the belief, or fear, of the existence of such peril of death or great bodily harm as would excuse the killing. And it was for the jury to test the credibility of the defendant as a witness, giving his testimony such weight, under all the circumstances, as they thought it entitled to, as in the instance of other witnesses, uninfluenced by instructions which might operate to strip him of the competency accorded by the law.
We repeat what was said by Mr. Justice Shiras, speaking for the court, in Hicks v. U. S., 150 U.S. 442, 452 , 14 S. Sup. Ct. 144: 'It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices, and perhaps a judge cannot be considered as going out of his province in giving similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury properly enough give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that 'the person charged shall at his own request, and not otherwise, be a competent witness.' The policy of this enactment should not be defeated by hostile intimations of the trial judge, whose duty it is to give reasonable effect and force to the law.' [160 U.S. 203, 208] Similar views have been expressed in many cases in the state courts.
In Com. v. Wright, 107 Mass. 403, it was held that there was no presumption either way as to the truthfulness of a defendant's testimony in a criminal case, and that his testimony is to be considered and weighed by the jury, taking all the circumstances of the case and all the other evidence into consideration, and giving such weight to the testimony as in their judgment it ought to have.
And see Greer v. State, 53 Ind. 420; Veatch v. State, 56 Ind. 584; Buckley v. State, 62 Miss. 705; State v. Johnson, 16 Nev. 36.
Among the errors assigned in the present case was one to so much of the charge as is given below in italics, in respect of which a sufficient exception was preserved. The trial judge said:
In this there was error. While the trial judge may not have intended to be understood that the defendant could not prove his defense by his own testimony, and had it in his mind simply to warn the jury that they should not rely on the defendant's opinion that his conduct was justifiable, on the facts, or what reasonably appeared to him to be such, we think these remarks had a much wider scope, and must have been so understood by the jury. The 'state of case' put to the jury was whether William Allison was at the time doing something that would satisfy a reasonable man, situated as defendant was, that he was about to do what would destroy defendant's life, and which defendant could not prevent except by doing as he did; and the question as to the existence of that state of case was required by the instruction to be passed on by the jury on something more than defendant's declaration, which, it was stated, would certainly be made by any man created when confronted with a charge of murder.
Defendant had testified to the facts upon which he based his belief that he was in peril, and it was for the jury to say from the evidence whether the facts as he stated them actually or apparently existed, and whether the homicide could, [160 U.S. 203, 210] therefore, be excused, either wholly or in part. And if the jury regarded the remarks of the court as applicable generally to defendant's testimony, then defendant was practically deprived of its benefit, and the statute enabling him to testify was rendered unavailing. In our opinion, the liability of the jury to thus understand these observations was so great that their utterance constitutes reversible error.
Nor was this error obviated by what, some time after,-the intervening portion of the charge occupies six closely-printed pages,-was said by the trial judge, as follows: 'The defendant has gone upon the stand, and he has made his statement. See if it is in harmony with the statements of witnesses you find to be reliable. If they are not, they stand before you as contradicted. If they are, they stand before you as strengthened as you may attach credit to the corroborating facts. In passing upon his evidence you are necessarily to consider his interest in the result of this trial, in the result of this case. He is related to the case more intimately than anybody else, and you are to apply the principle of the law that is laid down everywhere in all Civilized countries, commanding you to look at a man's statements in the light of the interest that he has in the case. There is no odor of sanctity thrown around the statements of the defendant as a witness, as is sometimes supposed, because he is charged with crime. You are to view his statements in the light of their consistency, their reasonableness, and their probability, the same as the statements of any other witness, and you are to look at them in the light of the interest he has in the result of the case.' If this should be, in any aspect, treated as a modification of the previous assertions of the court, it was too far separated from that connection to permit us to attribute that operation to it; and, moreover, it was in itself erroneous. As a witness, a defendant is no more to be visited with condemnation than he is to be clothed with sanctity, simply because he is under accusation, and there is no presumption of law in favor of or against his truthfulness.
Exception was taken, not with much precision, but, we are disposed to hold, sufficiently to save the point, to the following [160 U.S. 203, 211] instruction, given in discussing the question of malice aforethought:
And also to this, in reference to the exercise of the right of self- defense:
We are of opinion that defendant's objections to these portions of the charge are well founded. The hypothesis upon which the defense rested on the trial was that John Allison had a gun with him on the morning of the tragedy, in order to hunt deer, and that his stopping at Farris' place, which was on his way to Rucker's, was accidental. His testimony to this effect was corroborated, and was not contradicted.
Justice and the law demanded that, so far as reference was made to the evidence, that which was favorable to the accused should not be excluded. His guilt or innocence turned on a narrow hinge, and great caution should have been used not to complicate and confuse the issue. But the charge above quoted ignored the evidence tending to show that defendant had not armed himself at all, but had a gun with him for purposes of sport, and that his halt at Farris' had no connection whatever with the deceased; and invited the jury to contemplate the spectacle of a son hunting up his father with the deliberately preconceived intention of murdering him, unrelieved by allusion to defensive matter, which threw a different light on the transaction.
If defendant were 'in the right at the time of the killing,' the inquiry as to how he came to be armed was immaterial, or, at least, embraced by that expression. If there were evidence-and as to this the record permits no doubt-tending to establish that defendant carried his gun that morning for no purpose of offense or defense, then this disquisition of the court was calculated to darken the light cast on the homicide by the attendant circumstances as defendant claimed them to be; and of this he had just cause to complain, even though [160 U.S. 203, 213] there were competent evidence indicating that he harbored designs against his father's life, as frequently intimated by the court,-intimations which we fear seriously trenched on that untrammeled determination of the facts by a jury to which parties accused are entitled.
As will have been seen, the theory of the defense was that defendant was in terror of his life by reason of the threats of deceased to take it, and was, therefore, led to interpret the alleged menacing action of deceased as demonstrating an intention then and there to carry those threats into execution. The bearing of the previous threats, then, was very important, and in relation to them the trial judge admonished the jury as follows:
After much intervening discussion on other matters, the subject was returned to thus:
Defendant excepted to so much of these instructions as ruled [160 U.S. 203, 215] that threats to take his life might be treated as constituting evidence of spite or ill will or grudge on his part.
In Wiggins v. People, 93 U.S. 465 , it was held that, on a trial for a homicide committed in an encounter, where the question as to which of the parties commenced the attack is in doubt, it is competent to prove threats of violence against defendant made by deceased, though not brought to defendant's knowledge, for the evidence, though not relevant to show the quo animo of the defendant, would be relevant, under such circumstances, to show that at the time of the meeting deceased was seeking defendant's life. Whart. Cr. Ev. 757; Stokes v. People, 53 N. Y. 174; Campbell v. People, 16 Ill. 17; People v. Scoggins, 37 Cal. 676; Roberts v. State, 68 Ala. 156. It is from the dissenting opinion in Wiggins' Case that the trial judge indulged in quotation in connection with the undisputed proposition that a person's life is not to be taken simply because he has made threats.
Here the threats were recent, and were communicated, and were admissible in evidence as relevant to the question whether defendant had reasonable cause to apprehend an attack fatal to life, or fraught with great bodily injury; and hence was justified in acting on a hostile demonstration, and one of much less pronounced character than if such threats had not preceded it. They were relevant because indicating cause for apprehension of danger and reason for promptness to repel attack, but they could not have been admitted on a record such as this, if offered by the prosecution as tending to show spite, ill will, or grudge on the part of the person threatened; nor could they, being admitted on defendant's behalf, if coupled with an actual or apparent hostile demonstration, be turned against him in the absence of evidence justifying such a construction. The logical inference was that these threats excited apprehension, and another and inconsistent inference could not be arbitrarily substituted. If defendant, to use the graphic language of the court, hunted his father up and shot him down merely because he had made the threats, speculation as to his mental processes was uncalled for. If defendant committed the homicide because of the threats, in the sense [160 U.S. 203, 216] of acting upon emotions aroused by them, then some basis must be laid by the evidence other than the threats themselves before a particular emotion different from those they would ordinarily inspire under the circumstances could be imputed as a motive for the fatal shot.
What is or is not an overt demonstration or violence varies with the circumstances. Under some circumstances a slight movement may justify instant action because of reasonable apprehension of danger; under other circumstances this would not be so. And it is for the jury, and not for the judge, passing upon the weight and effect of the evidence, to determine how this may be. In this case it was essential to the defense that the jury should be clearly and distinctly advised as to the bearing of the threats and the appearance of danger at the moment, from defendant's standpoint, and particularly so as it did not appear that the deceased then had a pistol upon him, though there was evidence that it was his habit to carry one, and that he had had one immmediately before.
We think that the language of the court in the particulars named is open to the criticism made in reference to like instructions under consideration in Thompson v. U. S., 155 U.S. 271, 181 , 15 S. Sup. Ct. 73, where we remarked: 'While it is no doubt true that previous threats will not, in all circumstances, justify, or perhaps even extenuate, the act of the party threatened in killing the person who uttered the threats, yet it by no means follows that such threats, signifying ill will and hostility on the part of the deceased, can be used by the jury as indicating a similar state of feeling on the part of the defendant. Such an instruction was not only misleading in itself, but it was erroneous in the present case for the further reason that it omitted all reference to the conduct of the deceased at the time of the killing, which went to show an intention then and there to carry out the previous threats.'
Other exceptions to parts of the charge were taken, but, while not to be understood as holding that there was no error in respect thereof, we do not feel called upon to prolong this opinion, by their consideration, and they may not arise upon another trial. [160 U.S. 203, 217] Where the charge of the trial judge takes the form of animated argument, the liability is great that the propositions of law may become interrupted by digression, and so intermingled with inferences springing from forensic ardor that the jury are left without proper instructions, their appropriate province of dealing with the facts invaded, and errors intervene which the pursuit of a different course would have avoided.
Judgment reversed, and cause remanded, with a direction to set aside the verdict and grant a new trial.