Allen v. United States

Decision Date07 December 1896
Docket NumberNo. 371,371
Citation41 L.Ed. 528,17 S.Ct. 154,164 U.S. 492
PartiesALLEN v. UNITED STATES
CourtU.S. Supreme Court

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 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:

'If you believe the story as narrated by the two Erne boys, who testified as witnesses, is true,—that is, that the defendant went up the fence with his pistol; that he went through the wire fence, and went out in the wheat field, where Philip Henson was, and met him, first hallooed at him, placed his pistol upon the fence, and stopped the boys, and then went through the wire fence, and went out to where he was, and struck him first in the mouth with his left fist, and at the same time undertook to fire upon him, and that that firing was prevented by the action of Henson in taking hold of the pistol, and it went off into the ground, and then he fired at him, and struck him in the side, and then he fired at him and struck him in the back,—you have a state of facts which would authorize you to say that the killing was done willfully; and, not only that, but to say that it was done with malice aforethought, because that state of case, if that be true, would show the doing of a wrongful act, an illegal act, without just cause or excuse, and in the absence of mitigating facts to reduce the grade of the crime.'

The learned judge was stating in this connection the theory of the prosecution, and, if the facts were as stated by the 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:

'How can you find a deliberate intent to kill? Do you have to see whether or not the man had that intent or not in his mind a year or month or day or an hour? Not at all, for in this age of improved weapons, when a man can discharge a gun in the twinkling of an eye, if you see a man draw one of these weapons, and fire it, and the man toward whom he presents it falls dead, you have a deliberate intent to kill, as manifested by the way he did that act. You have the existence of a deliberate intent, though it may spring up on the spur of the moment,—as it were, spring up contemporaneous with the doing of it,—evidenced by shooting of the man, if the act was one he could not do under the law, and then claim it was manslaughter, or an act that he could not do in self-defense from the fact that it was done without just cause or excuse, or in the absence of mitigating facts; and that is precisely the definition of this characteristic of murder known as malice aforethought. It does not, as I have already told you, necessarily import any special malevolence towards the individual slain, but also includes the case of a generally depraved, wicked, and malicious spirit, a heart regardless of social duty, and a mind deliberately bent on mischief. It imports premeditation. Malice, says the law, is an intent of the mind and heart.'

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.

3. The sixth assignment is to the following language:

'The law says we have no power to ascertain the certain condition of a man's mind. The best we can do is to infer it more or less satisfactorily from his acts. A person is presumed to intend what he does. A man who performs an act which it is known will produce a particular result is, from our common experience, presumed to have anticipated that result, and to have intended it. Therefore we have a right to say, and the law says, that when a homicide is committed by weapons indicating design, that it is not necessary to prove that such design existed for any definite period before the fatal blow was fired. From the very fact of a blow being struck, from the very fact that a fatal bullet was fired, we have the right to infer as a presumption of fact that the blow was intended prior to the striking, although at a period of time inappreciably distant.'

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:

'It is the killing of a man unlawfully and willfully, but without malice aforethought. Malice aforethought, as I have defined it to you, must be excluded from it; that is, the doing of a wrongful act without just cause or excuse, and in the absence of mitigating facts, in such a way as to show a heart void of social duty, and a mind fatally bent upon mischief, must be out of the case. If that is driven out of the case, then if it is a crime at all it must come under this statute; it must come under this definition of the crime of manslaughter. The common law, which I will read to you, defines it in the same way. It tells you in a little broader terms what kind of conditions it springs out of. Speaking of voluntary manslaughter, it says it is the willful and unlawful killing of another on sudden quarrel, or in the heat of passion. Let us see what is meant by this definition. The party who is killed, at the time of the killing, must offer some provocation to produce a certain condition of mind. Now, what is the character of that provocation that can be recognized by the law as being sufficient to reduce the grade of the crime from murder to manslaughter? He cannot produce it by mere words, because mere words alone do not excuse even a simple assault. Any words offered at the time do not reduce the grade of the killing from murder to manslaughter. He must be doing some act—that is, the deceased, Philip Henson, in this case, the party killed—which at the time is of a character that would so inflame the mind of the party who does the killing as that the law contemplates he does not act deliberately, but his mind is in a state of passion, in a heat of passion, where he is incapable of deliberating.'

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 does not mean that defendant was assaulted in a slight way, or that you can kill a man for a slight attack. The law of self-defense is a law of proportions as well as a law of necessity, and it is only danger that is deadly in its character, or that may produce great bodily harm, against which you can exercise a deadly attack. If he is attacked by another in such a way as to denote a purpose to take away his life, or to do him some great bodily harm from which death or permanent injury may follow, in such a case he may lawfully kill the assailant. When? Provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling him without killing him, if it be in his power. The...

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