Hickory v. United States

• Decision Date: 15 January 1894
• Docket Number: No. 841,841
• Parties: HICKORY v. UNITED STATES
• Court: U.S. Supreme Court

151 U.S. 303

14 S.Ct. 334

38 L.Ed. 170

HICKORY

v UNITED STATES.

No. 841.

January 15, 1894.

Statement by Mr. Chief Justice FULLER:

Sam Downing, alias Sam Hickory, and Tom Shade, two Cherokees, were indicted and tried for the murder of Joseph Wilson, a United States deputy marshal, the trial resulting in the acquittal of Shade and the conviction of Hickory, who, being sentenced to death, prosecuted this writ of error. As stated in the brief for the government, Hickory admitted that he killed Wilson, but claimed that he was the attacking party; that the marshal came to arrest him for a violation of the liquor laws, and after the arrest, and while he was proceeding towards his house to get a saddle, the marshal began firing at him; that he ran into the house, and an affray occurred there, in which there was shooting by both, until the marshal was killed; that he concealed the body in a ravine, where it was found two or three days later; then hid in the neighborhood for awhile, and wandered about until he was arrested among the Osage Indians. One Carey testified that he went with the marshal to show him where Hickory lived, and that it was arranged that he should remain in the woods while Wilson went to the house and made the arrest; that, after he had arrested Hickory, he would fire his pistol to notify Carey that he had done so, so that Carey could meet him at a designated point; that in about half an hour Carey heard a shot, followed by several others.

There was some evidence that Wilson's skull had been fractured; also that Wilson's horse was found dead, with his throat cut, lying in an opposite direction from the body; and an attempt to show that Wilson, after being wounded by Hickory, was finally killed with an axe by Shade.

A letter written in the Cherokee alphabet, and claimed to be in Hickory's handwriting, to Ollie Hickory, alia Williams, was put in evidence, and marked 'A,' and was interpreted as follows: 'October 15th, 1891. Ollie: I write you a few lines. You must never disclose how this is about Tom Shade. Just say that I was the only one that did it. You must never tell anybody that he killed the horse, and all that he done. I tell you you must not. That is all now. I write in haste. Sam.'

The letter was identified as in Hickory's handwriting, although he denied it, and was admitted under exception on the part of the defendants. Joseph Shade, a witness for the defense, produced a paper on cross-examination, not relevant in itself, which was marked 'X,' which he testified was in Hick- ory's handwriting, and which seems to have been put in evidence without objection.

An expert in Cherokee handwriting testified on behalf of the defendants, on comparison of Exhibits A and X, that they were written by different persons, and that the only resemblance was in the signatures. Another witness testified that A was not in Hickory's handwriting, but that X was.

Mr. Justice Brewer dissenting.

A. H. Garland, for plaintiff in error.

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

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

1. Hickory, being called in his own behalf, denied that the letter marked 'A' was in his handwriting. His counsel offered a paper, which Hickory testified he had written at the table in court that day, 'to compare with the writing on the document marked 'X,' as produced by Joseph Shade, written previous to this time, and also to compare with the writing marked 'A' offered in evidence by the district attorney.' The court excluded the evidence, and the defendant excepted.

According to the general rule of the common law, the genuineness of disputed handwriting could not be determined by the court and jury be comparing it with other handwriting of the party, but among the exceptions to the rule was that if the paper admitted to be in the handwriting of the party, or to have been subscribed by him, was in evidence for some other purpose in the cause, the paper in question might be compared with it by the jury, (Moore v. U. S., 91 U. S. 271; Rogers v. Ritter, 12 Wall. 317;) and this with or without the aid of witnesses, (1 Greenl. Ev. § 578.)

By acts of parliament it is now provided in England, as 'to all courts of judicature, as well criminal as other,' 'that comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by the witnesses; and such writings and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise of the writing in dispute.' 17 & 18 Vict. c. 125; 28 & 29 Vict. c. 18.

Under these statutes it has been decided that any writings, of the genuineness of which the judge is satisfied upon the proof, may be used for the purposes of comparison, although they may not be admissible for any other purpose in the cause, (Birch v. Ridgway, 1 Fost. & F. 270; Creswell v. Jackson, 2 Fost. & F. 24;) and that the comparison may be made either by witnesses, or, without the intervention of any witnesses at all, by the jury themselves, (Cobbett v. Kilminster, 4 Fost. & F. 490; 1 Whart. Ev. § 712.) But, in the absence of statute, papers irrelevant to the issues on the record were held not receivable in evidence at the trial for the mere purpose of enabling the jury or witnesses to institute a comparison of hands. Bromage v. Rice, 7 Car. & P. 548; Doe v. Newton, 5 Adol. & E. 514; Griffits v. Ivery, 11 Adol. & E. 322; 1 Greenl. Ev. § 580. The danger of fraud or surprise and the multiplication of collateral issues were deemed insuperable objections, although not applicable to papers already in the cause, in respect of which, also, comparison by the jury could not be avoided.

We do not care to discuss the reasons for the rule, or examine the decisions by the courts of the several states, in which there is great want of uniformity, for the question here does not turn on the general rule in relation to comparison of handwriting or the admission of irrelevant papers for the sole purpose of comparison, but on the question of the admissibility of such writings when specially prepared for the purpose; and we are clear that they are not admissible. Undoubtedly, circumstances may often arise where a witness may be asked, on cross-examination, to write in the presence of the jury, for the purpose of testing his credibility, but as original evidence, as remarked in King v. Donahue, 110 Mass. 155, 'a signature made for the occasion post litem motam, and for use at the trial, ought not to be taken as a standard of genuineness.' 'It would,' as was said in Williams v. State, 61 Ala. 33, 'open too wide a door for fraud if a witness was allowed to corroborate his own testimony by a preparation of specimens of his writing for the purposes of comparison.'

'All evidence of handwriting,' says Greenleaf, (1 Ev. § 576,) adopting the language of Patteson, J., in Doe v. Suckermore, 5 Adol. & E. 730, 'except where the witness sees the document written, is, in its nature, comparison. It is the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind, derived from some previous knowledge.' We think, however, there is an obvious distinction between comparion by juxtaposition of an admitted or established writing and the disputed writing and comparison of the latter with an image in the mind's eye, but in either instance papers prepared for the purpose of having the comparison made are objectionable.

In Stranger v. Searle, 1 Esp. 14, Lord Kenyon refused to admit the testimony of a witness whose familiarity was derived from seeing him write for the express purpose of qualifying the witness, 'as the party might write differently from his common mode of writing through design.'

It is only when the paper is written, not by design, but unconstrainedly, and in the natural manner, so as to bear the impress of the general character of the party's writing, as the involuntary and unconscious result of constitution, habit, or other permanent cause, and therefore of itself permanent, that it furnishes, if otherwise admissible, any satisfactory test of genuineness. Coleridge, J., Doe v. Suckermore, 5 Adol. & E. 703, 705.

The paper offered was rightly excluded by the court.

2. The admission of the testimony of one Charles H. Snell was objected to upon the ground that his name was not on the indictment, and the objection was overruled, because not made until the examination in chief was concluded. The record shows no exception taken, though counsel expressed a desire to save the point. Under section 1033 of the Revised Statutes, any person indicted of a capital offense has the right to have delivered to him, at least two days before the trial, a list of the witnesses to be produced, and it would be error to put him on trial, and allow witnesses to testify against him whose named have not been furnished, if he seasonably asserted his right, (Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617;) but we think he did not do that here, and that the defect was waived. It was suggested by counsel for the defendant that the objection was made as soon as it was discovered that notice had not been given in respect of this witness, but we are of opinion that the discretion of the trial court was properly exercised upon the question. Counsel ought not to sit by and listen to the testimony in chief of a witness before inquiring whether his name has been furnished to the defendants.

3. It is assigned as error that the court did not allow 'defendants to show that they were surprised by the testimony of John Johnson, a witness for defendants, and to show previous declarations of said John Johnson to defendants' counsel through an interpreter on several occasions during the preparation of said case contrary to his testimony on the stand, which declarations were favorable to defendants.' Johnson...