Gourko v. United States

• Decision Date: 16 April 1894
• Docket Number: No. 972,972
• Citation: 153 U.S. 183,38 L.Ed. 680,14 S.Ct. 806
• Parties: GOURKO v. UNITED STATES
• Court: U.S. Supreme Court

153 U.S. 183

14 S.Ct. 806

38 L.Ed. 680

GOURKO

v UNITED STATES.

No. 972.

April 16, 1894.

This was an indictment against John Gourko for murder. Defendant was found guilty of murder in the first degree, and brings error.

The plaintiff in error, a white man, and not an Indian, was charged by indictment in the circuit court of the United States for the western district of Arkansas with the crime of having, on the 1st day of November, 1892, at the Choctaw Nation, in the Indian Territory, within the above district, feloniously, willfully, and with malice aforethought killed and murdered one Peter Carbo. A verdict of guilty was returned, and, a motion for a new trial having been overruled, the defendant was adjudged to suffer death. The present writ of error brings up that judgment for review.

John Gourko and his brother, Mike Gourko, and the deceased, Peter Carbo, all of Polish nativity, were engaged as laborers at certain coal mines in the vicinity of the town of Alderson, Choctaw Nation, Indian Territory. Between Carbo and the Gourko brothers—the two latter being respectively about 19 and 17 years there was considerable ill feeling, growing out of a charge made by the former that the latter had clandestinely appropriated for their benefit money due for the taking out of several lots of coal that he claimed to have dug, and with the taking of which from the mines they had no connection. Although the Gourko brothers denied this charge, Carbo persisted in repeating it, and, according to the testimony of the younger Gourko, threatened to kill them both, and 'to shoot John like a dog.' Carbo was about 40 or 45 years of age, weighed about 200 pounds, possessed extraordinary physical strength, and was regarded as a dangerous character. The defendant was in delicate health, weighed about 135 pounds, and was deemed a quiet, peaceable boy.

On the morning of November 1, 1892,—that being a holiday for the Polish laborers,—there were quite a number of miners in the town of Alderson. About 9 o'clock Carbo and the defendant were observed to be engaged in an angry conversation near the post office.

The postmistress at Alderson, describing what occurred, testified that Carbo would swear, and call Gourko 'names, and make threats that he would hit him, or something of the kind, and shook his fist right in his face.' Being afraid that Carbo was 'going to hurt the boy,' she spoke to Mr. Anderson, who was working in the store, and said, "Pete is going to kill John, I am afraid.' * * * The boy did not show any disposition to want to quarrel with him or want to fight. He would step back as much as two or three steps away, and Pete would follow him up, and shake his fist in his face, and the boy went on; and as he came back I spoke to John, the defendant, and asked him not to have any trouble there by the office, and he said he wasn't going to. He said, 'I have just gone to get a marshal to come and have him arrested,' and he said, 'I will wait until the marshal comes home."

Another witness, John Silluski, also a Polander, gave this account of the meeting between the deceased and the defendant near the post office: 'That day was a holiday, the first of month of November, and on this holiday all Polish stay at home. I stayed at home too. John Gourko was sick. He worked a couple of days, and stay at home three or four. I don't know how many. On that day I stayed at home, and he stayed at home too. He felt bad on that day. About 9 o'clock or half past 9 I go to the post office, and John Gourko too, and Pete Carbo was standing in front of the post office, and three other men were standing there, and he was talking to them, and I passed him, and went inside of the post office. I heard John say, 'Pete, how many cars of coal do you say I stole from you?' and Pete say: 'I don't say you stole. You and your brother together work at that place, and I lost about 6 cars.' John wasn't mad that time. Pete said he stole about six cars. John left home that morning, he did. He wasn't well. He was sick; didn't work. He had chills and faver. Was sick all the time. John said, 'You old sucker, I never stole no six cars of coal." Being asked what next happened, the witness stated that Carbo 'cursed Gourko all the time,' applying to him epithets of the most degrading kind, and which need not be here repeated. The witness further said: 'And Pete said: 'You want to fight this morning. Come on here,' and John said: 'I don't want to fight. I am a sick man. I am going to arrest you. I don't feel well.' And he said, 'Come on and fight, if you want to fight this morning,' and he said, 'I don't want to fight.' John looked behind the store for a policeman or something. He wanted to arrest him, I guess; I don't know.'

It appears from the evidence that the killing occurred about 20 or 30 minutes after the difficulty at the post office, and near a saloon in which a billiard table was kept. The witness who gave the fullest account of the difficulty up to the time of the killing was Mr. Anderson. He testified, in substance, that he saw the beginning of the trouble in front of the post office, in which was the store where he worked. Being asked to state what occurred, he said: 'Well, I was in the store there, and, as usual, around the post office there was a crowd gathered there for the mail, at distributing times, and other times men congregate around in front of the store and in the store; and this morning, which was the morning of the 1st of November, 1892, there was quite a crowd gathered right in front of the window and door of the store or post office, and it was not long until my attention was called to the loud talking out there by the postmistress. * * * The man who was doing the loud talking was Peter Carbo, the man who was killed. He appeared at that time to be angry, and was talking pretty loud when I first saw him. I heard him talking there before I got in position where I could see him. I saw him then quarreling with John Gourko; * * * and I seen Peter Carbo shake his fist at John, and putting his fist up under his nose, and using considerable bad language. * * * I heard him say that frequently, several different times; and John Gourko there, when he would be shaking his fist at him he would be stepping back, backing away. I seen him back as far as from here to you, and pass around the crowd. And it would only be a few moments until Peter would be there. Q. Peter would follow him up? A. Yes, sir. And in the interval he would sometimes have one hand in his bosom and the other hand behind here. Of course, I didn't know whether he was armed or not. I stood in the store where I belonged, and after a little while the disturbance out there ceased, and they separated, and then in few minutes after that, just a short space of time, I don't know just how long,—Mr. Gourko there came back to the store, and the postmistress spoke to him, called him in, and had a talk with him, and told him she didn't wish any more trouble. And I was speaking to Mr. Gourko there, as I was acquainted with him, and told him that the postmistress didn't want any more trouble in front of here,—in front of her window,—and no more such language as that was, and I told him to keep away from Peter Carbo, and have no more trouble with him. I also asked him if he was armed, and he said he was not. And presently,—just about that time there was a customer come in, and I had to leave him, and go back to my work; and after I went back to my work, waiting on the customers, I can't tell how long that was, but I got through the customers, and I happened to walk to the store door, and I leaned up against the side of the door, and was standing there, and presently I saw Mr. Gourko there coming right to me from...