Hickory v. United States

• Court: U.S. Supreme Court
• Writing for the Court: WHITE
• Citation: Hickory v. United States, 160 U.S. 408, 16 S.Ct. 327, 40 L.Ed. 474 (1896)
• Decision Date: 06 January 1896
• Docket Number: No. 491,491
• Parties: HICKORY v. UNITED STATES

160 U.S. 408

16 S.Ct. 327

40 L.Ed. 474

HICKORY

v UNITED STATES.

No. 491.

January 6, 1896.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice WHITE delivered the opinion of the court.

Sam Downing, alias Sam Hickory, and Thomas Shade were indicted, in October, 1891, for the murder in the Indian Territory of a white man by the name of Joseph Wilson. Downing, who was at the time of the alleged killing 19 years old, was tried and convicted, and the case was brought by error here. The verdict and judgment were reversed, and the case was remanded for a new trial. Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334. On the trial, the defendant was again found guilty of murder, and the case for the second time comes here by error. The assignments of error are 12 in number, and all relate to errors alleged to have been committed by the trial court in the charge given to the jury. The charge covers 20 pages of the printed record. To correctly understand the merits of the various assignments of error, it is necessary to briefly refer to the testimony, which is stated in a condensed form in the bill of exceptions.

The testimony for the prosecution tended to show that Wilson, the deceased, was a deputy marshal, and had a warrant for the arrest of the accused upon the charge of taking whisky into the Indian country. With this warrant he started to a house, where he expected to find Hickory, being accompanied by John Carey. Wilson and Carey proceeded together until just before reaching this house. Carey then informed Wilson that he would go no further with him, as he did not wish to be known in the neighborhood in connection with the arrest. It was then arranged between them that Carey should remain in the woods while Wilson should continue on to the house, and make the arrest. Wilson had with him 'a large white-handle pistol,' and told Carey that if he found the accused he would fire off his pistol after arresting him, in which case Carey would meet him, 'close to Brown's, on the prairie.' Wilson then proceeded on his way, and Carey remained in in about half an hour Carey heard the firing In about half an hour carey heard the firing of 'a gun,' then 'two guns' went off together, then there were several shots, 'which sounded as if they were fired by one fire.' Carey waited for Wilson until sundown, fire.' Carey waited for Wilson until sundown, and as he did not then come he (Carey) went to the house of Squirrel Carey, and 'told him about hearing the shooting, and that Wilson was to fire his pistol, but he did not say how many times.' The government also introduced proof showing that some days afterwards the body of Wilson was found in a gulch or ravine, and there was a gun-shot wound straight through the body; that the skull was fractured, and that there was a contused wound or bruise at the base of the brain. The person of the deceased had not been rifled, and on it were found his watch and papers; among the latter the warrant for the arrest of Hickory.

Further testimony was introduced tending to show that an examination of the house where Wilson had gone to arrest the accused disclosed spots of blood on the porch, in the house, on the door, and in the yard at several places, and on a wagon standing in the yard, and that efforts had been made to conceal these spots of blood. There was also testimony showing bullet marks in the house; that 'certainly one, and probably two, shots were fired from a southeasterly direction, where the marshal likely was at the commencement of the shooting, towards the front door, one striking a corner post and the other the wall near the door. Two shots had been fired from the inside of the house through the front door, as shown by the holes. One shot had been fired from the large front room, glancing the middle-door shutter, which was open, and going into the wall of the rear room; and another had gone into the wall of said rear room opposite the center of the middle door.'

Testimony was further offered tending to show that Wilson's horse was found dead some distance from the house, and the witnesses could not tell whether 'its throat had been cut or eaten by wild animals, as they had been working on it.' It was also shown that when Wilson went to the house he had a pistol, a bridle, and a saddle, on which a coat was strapped, and these things were not found. The government then further introduced testimony tending to show that the accused had told three or more witnesses 'that he shot the deceased, and hit him the first shot, but did not kill him, and that Tom Shade, who was there with defendant, knocked the deceased in the head with an axe; that after the killing an attempt had been made to destroy the blood spots in the house and yard.' It further introduced testimony tending to show that after the killing the accused was "scouting,' that is, avoiding arrest.' Upon this proof the case for the prosecution was rested. The accused, after introducing testimony tending to rebut the alleged confession by showing that he was not in the place named at the time it was stated the confession had been made, then testified in his own behalf, admitting the killing of Wilson, and giving substantially the following account of the occurrence: He was in the yard, hitching up a team of horses for the purpose of hauling a load of posts, when Wilson came into the yard, and asked him his name, which he gave him, and thereupon Wilson put him under arrest, and read the warant to him; that he replied, 'All right,' and unharnessed the horses, and turned them loose; that Wilson asked him whether he was going to ride one of the horses, and he replied, 'No; that they did not belong to him;' that thereupon Wilson asked him who was the owner of the horses, and he said the owner was not there but lived in the neighborhood. Wilson told him to take one of the horses, and they would ride to the owner's house, and, if he would not consent to Hickory riding away on it, it could be returned. He again said, 'All right,' and put the bridle on the horse, Wilson telling him to hurry up, and get his saddle; that he started to go into the house after his saddle, and when he was about three steps from the porch he heard the fire of a gun, and, turning around, saw Wilson with a revolver in his hand, and smoke coming from it; that he did not run after the first shot, but walked on towards the house, when a second shot was fired just as he was about to enter the front door; that he went into the house, and shut the front door, intending to go out through a side-room door and run off. When he had gotten about as far as the middle door of the side room he discovered Wilson coming in through the outside door of the side room with his pistol raised at him (indicating the pointing of a pistol); that he then ran to the east side of the front room, got his gun, and went to the front door. The marshal then appeared at the middle door of the side room, exposing himself just enough to shoot, which he did, and that he (the accused) returned the fire, which was followed by further firing between them. The marshal then disappeared from the door, and went into the yard, and fell down close by the wagon. He (the accused) ran off, and remained a half an hour, and on coming back found the marshal dead. He became frightened, and did not know what to do, and, indeed, did not know all that he did do. He put the body of the marshal on the wagon, and hauled it about a mile and a half from the house, and then threw it out at the head of the gulch. When he returned after doing this he found the marshal's horse wounded in the knee. He took off the saddle and bridle and hid them, and also the coat which was tied to the saddle, and the marshal's pistol and belt. The accused also introduced a witness to the killing, a woman by the name of Ollie Williams, his mistress. She testified to the marshal's coming up to the place where the accused was standing in the yard with the wagon and horses; to the accused starting towards the house. She said that the marshal, who was right by a tree, then shot at him; that she did not see how the marshal held his pistol the first time he shot; that the accused was going into the door when the two shots were fired; that the marshal came around to the outside room door with a pistol in his hand, and told her to get out of the way; that she went a quarter of a mile off, and had nothing to do with the moving of the body of the deceased. The accused, moreover, introduced the testimony of a physician who had examined the body of the deceased, and who contradicted the statement that there was a fracture in the skull of the deceased, and said there were two scalp wounds, one on the top of the head and the other in the back. 'They had the appearance of some blunt substance striking the head, or the head striking the substance.'

The opinion formed by us as to three of the assignments of error will render an examination of the others unnecessary. The three which we will consider are as follows:

'(4) Because the court, in commenting on the inculpatory testimony as to the acts of the defendant with reference to the body of the deceased, the alleged killing of the horse, in reference to what is charitable or brutal conduct, gives undue prominence to the inculpatory facts, without summing up all the testimony, as well for as against the defendant in reference to this branch of the case.'

'(7) Because the court a second time, in the charge, in going over the alleged conduct of the defendant subsequent to the killing, and his conduct in flight, gives undue prominence to the inculpatory facts, and gives them in a way that have the effect of an argument against the defendant, and are not a proper, full summing up of the facts upon this branch of the case.'

'(11) Because the court bears upon and gives undue prominence to the flight of defendant, and treats it absolutely as true that defendant concealed the blood, killed the...