Homer Bird v. United States

• Decision Date: 25 February 1901
• Docket Number: No. 278,278
• Parties: HOMER BIRD, Plff. in Err. , v. UNITED STATES
• Court: U.S. Supreme Court

180 U.S. 356

21 S.Ct. 403

45 L.Ed. 570

HOMER BIRD, Plff. in Err.,

v UNITED STATES.

No. 278.

Argued January 21, 1901.

Decided February 25, 1901.

Messrs. L. T. Michener, W. W. Dudley, and Malony & Cobb for plaintiff in error.

Assistant Attorney General Beck for defendant in error.

Statement by Mr. Justice Shiras:

At a term of the United States district court in and for the district of Alaska, Homer Bird, the plaintiff in error, was tried on a charge of having murdered one J. H. Hurlin on the 27th day of September, A. D. 1898. On December 6, 1899, the jury found the defendant guilty as charged in the indictment, and on December 13, 1899, a motion for a new trial having been overruled, a sentence of death by hanging on February 9, A. D. 1900, was pronounced. A bill of exceptions was settled and signed by the trial judge on February 8, 1900, and a writ of error from the Supreme Court of the United States was allowed. The evidence contained in the bill of exceptions shows that a party of five persons, composed of Homer Bird, J. H. Hurlin, Robert L. Patterson, Charles Scheffler, and Naomi Strong, sailed up the Yukon river, in the latter part of July, 1898, on an adventure in search of gold. They traveled on a small steam launch, towing a scow laden with an outfit of clothes and provisions sufficient to last them about two years. In the latter part of September, 1898, they reached a point on the river about 600 miles from St. Michaels, at the mouth of the Yukon, when they determined to go into winter quarters, and there began the construction of a cabin on the banks of the stream. On September 27, 1898, in a quarrel that had arisen about a partition of the supplies, Hurlin was shot and killed by Bird. At the trial in December, 1899, there were three witnesses who had been present at the time of the homicide, Scheffler, Strong and Bird, the accused. As the fact of the killing of Hurlin by Bird was not denied, the trial turned on the question whether the killing was malicious and wilful or was in self-defense.

Mr. Justice Shiras delivered the opinion of the court:

The assignments of error are twenty-five in number, but of these we think it sufficient to consider only the tenth, the fourteenth, and twenty-third.

The homicide, as alleged in the indictment, occurred on September 27, 1898, at a point on the Yukon river about 85 miles above Anvik, and about 2 miles below a coal mine known as Fort Dewey.

At the trial the government called as a witness for the prosecution one Charles Scheffler, who testified, among other things——

'That in the month of August, when the defendant, in company with the deceased, Hurlin, R. J. Patterson, Naomi Strong, and witness, were going up the Yukon river in a steam launch, towing a barge loaded with their provisions, Hurlin was steering; that the defendant was very disagreeable to all the other persons; that when they would run into a sand bar, he would curse them; he would say 'the Dutch sons of bitches don't know where to run it.' On one occasion they were getting wood on the bank of the river, and Bird got out and wanted to hit Patterson. Witness didn't remember exactly what was said, but defendant called Patterson a 'son of a bitch,' and told him he would 'hammer the devil out of him,' and witness and the others would not let them fight. And if anything would go wrong he, defendant, would not curse in front of witness and the others' faces, but defendant would be disagreeable all the way along, and would make things very disagreeable.'

To this testimony the defendant, by his counsel, objected 'as immaterial and irrelevant, and too remote from the time the offense is charged to have been committed;' but this objection was by the court overruled, and said testimony permitted to go to the jury; to which ruling of the court he then and there excepted. This testimony, the objection, and the ruling are set forth in the bill of exceptions, and form the subject of the tenth assignment of error.

As it was not denied that Hurlin died immediately from a wound intentionally inflicted by the accused, the issue to be determined by the jury was whether the accused was actuated by a malicious motive or acted in self-defense.

As the testimony in this issue was conflicting, or, rather, the defendant's evidence not yet having been given, as it might well have been anticipated that the testimony would be conflicting, it seems to have been the theory of the prosecution that the evidence in question in the tenth assignment tended to show such a state of enmity on the part of the accused towards the deceased as to warrant the jury in finding that the act of the accused in shooting the deceased was the result of a pre-existing unfriendly feeling.

The general rule on the subject of permitting testimony to be given of matters not alleged is that nothing shall be given in evidence which does not directly tend to the proof or disproof of the matter in issue. And it was said by Mr. Best in the 92d section of 'Principles of Evidence,' that whether a given fact, bearing indirectly on a matter in issue, should be received as circumstantial, or rejected as conjectural evidence, is often a question of extreme difficulty.

In the proof of intention it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged; for the unlawful intent in the...