153 U.S. 614 (1894), 1080, Starr v. United States

Docket NºNo. 1080
Citation153 U.S. 614, 14 S.Ct. 919, 38 L.Ed. 841
Party NameStarr v. United States
Case DateMay 14, 1894
CourtUnited States Supreme Court

Page 614

153 U.S. 614 (1894)

14 S.Ct. 919, 38 L.Ed. 841



United States

No. 1080

United States Supreme Court

May 14, 1894

Submitted March 5, 1894




A warrant issued by a commissioner of a court of the United States is not void for the want of a seal, the commissioner having no seal, and not being required by statute to affix one to warrants issued by him.

The same result is reached under the laws of Arkansas, which prescribed the form of warrant as attested under hand, but not under seal.

The settled rule that where a person having authority to arrest, and using the proper means for that purpose is resisted, he can repel force with force, and if the party making the resistance is unavoidably killed, the homicide is justifiable, may be invoked by a person who resists and kills the officer if he was ignorant of the fact that he was an officer, and when such a defense is set up to an indictment for murder, it is error to charge the jury that if the threatening or violent conduct of the prisoner prevented the officer from giving notice of his official character, he would not be required to give notice.

The possession of a conscience void of offense towards God and man is not an indispensable prerequisite to justification of action in the face of imminent and deadly peril, nor does the intrinsic rightfulness of the occupation or situation of a party, having in itself no bearing upon or connection with an assault, impose a limitation upon the right to repel it.

The motive of a person, accused of murdering an officer trying to arrest him, in being where he was at the time of the killing has nothing to do with the question of his right of self-defense in itself, and his previous

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unlawful conduct should form no element in the solution of that question except as it throws light on his belief that his arrest was sought by the officer.

While it is well settled in federal courts that the presiding judge may sum up the facts to the jury and express an opinion upon them, he should take care to separate the law from the facts and leave the latter in unequivocal terms to the judgment of the jury.

The circumstances of this case apparently aroused the indignation of the judge who presided at the trial of it in an uncommon degree, and that indignation was expressed in terms which were not consistent with due regard to the right and duty of the jury to exercise an independent judgment in the premises, or with the circumspection and caution which should characterize judicial utterances, and this Court is constrained to express its disapprobation of this mode of instructing and advising a jury.

[14 S.Ct. 919] Henry Starr was convicted of the murder of Floyd Wilson, a white man, and not an Indian, on December 13, 1892 at the Cherokee Nation, in the Indian Territory, and November 4, 1893, sentenced to be hanged on February 20, 1894, and thereupon sued out this writ of error.

It appeared on the trial that on November 18, 1892, a warrant was issued by a United States commissioner for the Western District of Arkansas for the arrest of Starr and others on a charge of larceny, which was delivered for execution to Henry E. Dickey, a deputy United States marshal, and that the marshal summoned Floyd Wilson, the deceased, as his posse to aid in the execution of the warrant. The evidence tended to show that they proceeded on horseback to the neighborhood of the place where Starr was to be found, and after visiting several points, came to the house of one Dodge, where they concealed themselves to await his coming; that Starr passed Dodge's house on horseback, whereupon Wilson mounted his horse, and pursued him; that the two jumped from their horses, and stood facing each other a short time, apparently talking; that it looked as if Starr "was trying to work off away from Wilson" when Wilson mounted his horse again, and rode up to within twenty-five or thirty feet of Starr, who made no effort to flee, that Wilson then sprang from his horse, threw his gun to his shoulder, and fired at Starr, who was then standing with his gun in both hands, holding it down, but, upon Wilson's shooting, returned the

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fire, and continued to fire rapidly; that Wilson fell, raised himself in a sitting position, jerked his six-shooter out, and fired four times, when Starr ran up to him, and fired point blank into him; Wilson died immediately afterwards. The evidence further tended to show that during the affray Starr fired one shot at the marshal; that he picked up Wilson's gun, found the lever out of order, could not fire it, and turned to go away, and as he turned, the marshal fired at him; that the marshal's and Starr's horses ran away, but Starr caught Wilson's horse, and, mounting it, rode off. The marshal testified that at the time of this occurrence, he had the writ in his possession, and had instructed Wilson as to his duties, and told him: "Now, don't kill this boy, if possible to get along without it. We will call on him to surrender."

One Mrs. Padget testified that she saw [14 S.Ct. 920] the transaction from a distance, called a quarter of a mile, and understood Wilson to say, "Hold up; I have a warrant for you," and that Starr said, "You hold up." She also, in answer to a question put by the district attorney, stated that three or four weeks before the shooting, Starr told her that he guessed a marshal named Cowden was hunting for him "for jumping his bond." And Dickey said, in the course of his testimony, that he went up in Starr's neighborhood to see a person "shortly after Henry started, got out and jumped his bond."

The witnesses agreed that Wilson fired the first shot and also that, during the time he was riding up to Starr, Starr did not raise his gun or make any effort to stop Wilson. Starr was a Cherokee Indian, and at that time between 18 and 19 years of age.

The warrant was signed by Stephen Wheeler, "Commissioner U.S. Court, Western District of Arkansas," and tested as under seal, but no seal was affixed, and counsel for defendant objected to the warrant for the want of a seal, and took exception to its admission on that ground, though, in answer to questions by the court, they admitted that Wheeler was a United States commissioner for the Western District of Arkansas at the time the writ issued, and that the signature thereto was genuine.

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FULLER, J., lead opinion

MR. CHIEF JUSTICE FULLER, after stating the facts in the foregoing language, delivered the opinion of the Court.

1. Exception was taken to the admission of the warrant in evidence, and also to the reference thereto as valid process in the charge of the court, upon the single ground that it bore no seal.

It is not contended that a seal is required to such a warrant by any act of Congress, or any statute of the State of Arkansas, but the argument is that a warrant of arrest at common law was void if it were without seal, and that the common law rule so asserted was applicable.

In Padfield v. Cabell,Willes 411, it was held that a warrant need not be under seal unless required by statute, and Willes, C.J., said:

A warrant does not, ex vi termini, apply to an instrument under seal. It signifies no more than an authority. All the books in which it said that a warrant must be under seal are founded on a case in the Year Books, 14 Hen. 8, 16, a, where it is said that a justice of the peace is a judge of record, and hath a seal of office, and that the inferior officer, when he sees the seal, must give credit thereto.

In Aylesbury v. Harvey, 3 Lev. 204, the defendant seized a cup under a warrant by justices of the peace, on a conviction under the excise law, to levy twenty shillings, and in answer to an objection taken to the plea, that the warrant was not pleaded with a profert, the court said: "The statute does not require that the warrant be under hand and seal, but only in writing, and no writing is to be so pleaded, except it be a deed," etc.

Hawkins P.C., bk. 2, c. 13, § 21, follows Lord Hale in stating the necessity of the seal to a warrant of a justice of the peace, but what Lord Hale says is this (1 Hale, P.C. 577): "It must be under seal, though some have thought it sufficient if it

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be in writing, subscribed by the justice." And he refers to Dalton's Justice, wherein it is laid down that "their warrant or precept in writing should be under their hand and seal, or under their hand at least." First ed. 1618, 287. In the third edition (1630), this is repeated, and it is further said:

Also, the warrant of the justice of the peace should be under the seal of the said justice, for every justice of the peace, being a judge of record, hath a seal of his office, and when he marketh a warrant under his seal to the officer, then the officer ought to give credence to the seal, for that is his authority. Per Brudenel, 14 Hen. 8, 16.

This was the ground of Lord Coke's statement (2 Inst. 590) that a mittimus

must be in writing, in the name and under the seal of him that makes the same, expressing his office, place, and authority, by force whereof he marketh the mittimus.

Lord Chief Justice Willes, in Padfield v. Cabell, thus explains the language of Coke, and points out that Dalton

puts two instances of warrants only under hands, one by Lord Chancellor Ellesmere, for a contempt, A.D. 1607; the other by Chief Justice Popham, 3 Jac. 1. There is also reference in Dalton to two precepts or warrants by justices only under their hands.

Blackstone states that the "warrant ought to be under the hand and seal of the justice" (4 Bl.Com. 290). But Chitty's note on that passage is that "it seems sufficient if it be in writing, and signed by him, unless a seal is expressly required by a particular act of Parliament," citing Willes, 411; Buller N. P. 83. And this is repeated in 1 Chitty...

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