Brown v. United States, No. 103
| Court | United States Supreme Court |
| Writing for the Court | HOLMES |
| Citation | 256 U.S. 335,65 L.Ed. 961,18 A.L.R. 1276,41 S.Ct. 501 |
| Parties | BROWN v. UNITED STATES |
| Docket Number | No. 103 |
| Decision Date | 16 May 1921 |
v.
UNITED STATES.
Page 336
Messrs. James R. Dougherty, of Beeville, Tex., E. C. Brandenburg, of Washington, D. C., and W. E. Pope, of Corpus Christi, Tex., for petitioner.
[Argument of Counsel from page 336-337 intentionally omitted]
Page 337
Mr. Assistant Attorney General Stewart, for the United States.
[Argument of Counsel from pages 337-341 intentionally omitted]
Page 341
Mr. Justice HOLMES delivered the opinion of the Court.
The petitioner was convicted of murder in the second degree committed upon one Hermis at a place in Texas within the exclusive jurisdiction of the United States, and the judgment was affirmed by the Circuit Court of Appeals. 257 Fed. 46, 168 C. C. A. 258. A writ of certiorari was granted by this Court. 250 U. S. 637, 39 Sup. Ct. 494, 63 L. Ed. 1183. Two questions are raised. The first is whether the indictment is sufficient, inasmuch as it does not allege that the place of the homicide was acquired by the United States 'for the erection of a fort, magazine, arsenal, dockyard, or other needful building,' although it does allege that it was acquired from the State of Texas by the United States for the exclusive use of the United States for its public purposes and was under the exclusive jurisdiction of the same. Penal Code of March 4, 1909, c. 321, § 272, Third; 35 Stat. 1088 (Comp. St. § 10445);
Page 342
Constitution, art. 1, § 8. In view of our opinion upon the second point we think it unnecessary to do more than to refer to the discussion in the Court below upon this.
The other question concerns the instructions at the trial. There had been trouble between Hermis and the defendant for a long time. There was evidence that Hermis had twice assaulted the defendant with a knife and had made threats communicated to the defendant that the next time, one of them would go off in a black box. On the day in question the defendant was at the place above mentioned superintending excavation work for a postoffice. In view of Hermis's threats he had taken a pistol with him and had laid it in his coat upon a dump. Hermis was driven up by a witness, in a cart to be loaded, and the defendant said that certain earth was not to be removed, whereupon Hermis came toward him, the defendant says, with a knife. The defendant retreated some twenty or twenty-five feet to where his coat was and got his pistol. Hermis was striking at him and the defendant fired four shots and killed him. The judge instructed the jury among other things that 'it is necessary to remember, in considering the question of self defence, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm.' The instruction was reinforced by the further intimation that unless 'retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm' the defendant was not...
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