Allen v. United States

• Decision Date: 04 December 1893
• Docket Number: No. 969,969
• Citation: 150 U.S. 551,37 L.Ed. 1179,14 S.Ct. 196
• Parties: ALLEN v. UNITED STATES
• Court: U.S. Supreme Court

150 U.S. 551

14 S.Ct. 196

37 L.Ed. 1179

ALLEN

v UNITED STATES.

No. 969.

December 4, 1893.

Statement by Mr. Chief Justice FULLER.

Alexander Allen was indicted at the November term, 1892, of the circuit court for the western district of Arkansas for the murder of Phillip Henson in the Cherokee Nation, on May 14, 1892, and, at the February term, 1893, of that court was tried upon the indictment, found guilty of the crime charged and, after the overruling of a motion for new trial, was sentenced to death. A writ of error was then allowed to this court.

The evidence tended to show that Allen was a colored boy, of about 14 years of age at the time of the homicide, working on the farm of Albert Marks in the Cherokee Nation, some three or four miles from Coffeyville, Kan., where Marks lived. That on Thursday, May 12, 1892, he was sent to look for some horses belonging to one Morgan, and was accompanied by another colored boy, James Marks, who was then 12 years old. That these boys met Phillip Henson, the deceased, a white boy, 18 years of age, with whom were George Erne, aged 14, and Willie Erne, aged 13, also white; and some words ensued between Henson and Allen. In respect of this the Erne boys testified to nothing of particular moment, but the acused and James Marks testified to great bitterness in the language used by Henson, including threats and oaths. On Saturday, May 14th, Henson and the two Erne boys had left the Erne house, and were going through a wheat field towards a lake, in an easterly direction, carrying in their hands willow sticks with the bark peeled off, with which to kill frogs to use as bait in fishing; and when about half way across the field they saw on the eastern side of the fence which separated it from the land of Albert Marks, Allen and Harvey Marks, a brother of James, then 11 years of age. An altercation ensued, in which Allen shot Henson with a pistol, from which wound he died in a few minutes. According to the evidence of the Erne boys, Allen took the pistol out of his hip pocket, removed the scabbard, handed it to Harvey Marks, and climbed through the wire fence from the east side to the west side, struck Henson with his left hand, and then with the pistol in his right hand shot Henson twice, and shot George Erne through the arm. Allen and Harvey Marks testified that Henson and his two comrades came through the fence on the west side into Marks' ground, and Henson struck Allen over the head with a stick; that Henson and Allen closed in and wrestled, and Henson threw Allen and had him down, and George Erne then struck Allen on the arm with a stick; that Allen, while lying on the ground with Henson on him, drew the pistol from his pocket, and shot Henson, who, after he was shot, ran towards the fence, about 40 steps off, and climbed through it back into the wheat field. His dead body was found lying in the field about 30 or 35 steps from the fence. The face seemed bruised, as if he had been struck in the mouth. Evidence was given that the tracks of the three boys were plain and distinct the next day in the soft ground, going in a northeasterly direction in the field towards the lake, and that the wheat was trampled down, and there was blood on the ground at the distance of 38 steps from the fence. That from this point to the fence there was a single track made by shod feet coming over the fence westward, while the other three tracks were made by bare feet; and that Henson and the two Erne boys were barefooted on that occasion, while Allen had on either boots or shoes. That there was short grass on the east side of the fence, and, although there were tracks around there, it was difficult to discover anything. There was also evidence that Allen, after the shooting, ran back to the house, obtained his satchel, went to Coffeyville in a cart, and thence on foot to Edna, Kan.; that Clifford, the United States marshal for the district of Kansas, and one Knotts, found him at Edna, about half-past 2 that day; that he fied, and they pursued and caught him; that Knotts returned with him to Coffeyville, and on the way asked him if he knew that he had killed that boy, and he said no, that he knew he shot him, but not that he killed him, and then stated that there was a man shot in Oswego, and that nothing was done with him, and, being asked what he shot the boy for, he replied he was afraid they would hurt him with their sticks; that they did not strike him with sticks, but he was afraid they would; that they had had trouble a few days before. It further appeared that he told Clifford he 'didn't propose to be beaten with clubs;' that the deceased struck him over the arm; and that Clifford examined his person on the 16th, and found a bruise on his left arm. The evidence further tended to show that on the morning of the 14th of May, Allen did not have his pistol with him, but, having started with a load of hay to town, met Harvey Marks coming down to the farm for milk, and was told by William Marks (Harvey's grandfather) to go back with Harvey, which he did, and then went into the farm house, and took the pistol from his overcoat pocket, where he had placed it two days before. This pistol was found in his satchel when he was arrested, and was a six-shooter, with a rubber scabbard on it, and one load in it. Three empty cartridge shells, which fitted the pistol, were found in his pocket, and Allen, when asked by Clifford to account for the empty shells, stated that he had emptied his pistol shooting rabbits on his way out there from Coffeyville. When asked on the stand why, when he went to Coffeyville, he had not gone and seen Albert Marks about the matter, and told him what had occurred, or hunted up Mr. Morgan, Allen replied because he did not think it was worth while. 'It wasn't my business, because I had done it, to go around and tell every one about it.' James and Harvey Marks were cross-examined to show that there were discrepancies between their statements on the witness stand and statements which they had made to the marshal May 21st, and which were taken down in writing by him at the time.

The court in the course of the charge to the jury stated that it was necessary that he should give 'the legal definition of all these conditions that I have named,—that is, murder, manslaughter, and a rightful killing under the law of self-defense, called a killing in self-defense;' and, after defining murder and explaining malice, express and implied, and giving the definition of manslaughter, with comments, all at length, proceeded thus:

'Now, in this connection, if you believe, at the time of this killing, Henson and these other boys had entered into a fight, had come up and attacked the defendant with sticks, as is ciaimed by him, and as is claimed by some of these other witnesses, and that he killed him at that time, and under such circumstances, if it was not done in a brutal and unnatural and specially wicked way, that would be a state of case where manslaughter would exist, provided the defendant by his actions of a violent character and his conduct did not bring on the conflict of that kind. If he brought it on, if he precipitated it by a violent act upon his part, then there could be no mitigation in it; there could be no self-defense, as I will tell you presently. But if, on the other hand, he went up and put his pistol across that fence, and jumped over the fence, and attacked the Henson boy, struck him in the mouth, and at the same time attempted to shoot him, and subsequently, in the consummation of that attempt, did shoot him, and followed up that shooting when he was retreating, and shot him in the back, that would be a state of case where there would be no manslaughter in it. It would be murder under the definition of that crime as I have given it to you.

'We come now to the other definition. It has been invoked in this case. And I give it in these cases whether it has been invoked or not, because we can frequently reason and come to a conclusion by means of elimination, just as in algebra you can eliminate certain quantities from a certain side of an equation, and thus get at a certain quantity, and get at a methodical conclusion in a reasonable way in that manner. Now, if we have the definition of these three conditions. and if you can eliminate two of them, you necessarily drop down to the other condition as existing, because there cannot be but one which is true. The conditions are the opposite to each other, and you cannot find the existence of any two of them in a case. There is one certain condition that is applicable to the facts. Therefore, when you have these conditions all before you, you can the better say whether it is murder or manslaughter, or a case of justifiable homicide. [Now, what is justifiable homicide? When can a man slay another? When can he sit as a judge passing upon the law, and a jury passing on the facts, and then as a jury applying the law to those facts, and finding a verdict, and then acting again as the court and entering up judgment, and then going out as a marshal or sheriff and executing that judgment, all at the same time, determining the law, determining the facts as judge, jury, and executioner all at the same time? This is a mighty power in the hands of the citizen. It is a mighty power, yet it is to be applied when it belongs to him because it is the law of necessity, and it is given to him because it is the law of necessity; it is given to him because at the time he executes it in a deadly way his own life is either actually or really in deadly peril from which he cannot escape except by the use of that deadly means, or, in your judgment, taking into consideration his condition, there was reasonable ground to believe there was peril. That is what is meant by it. It is a law of protection; it is a law of necessity. This is the law you are sitting here to execute. It is a law of self-defense. You are to execute it for the sake of society,...