John Bad Elk v. United States

• Citation: 177 U.S. 529,44 L.Ed. 874,20 S.Ct. 729
• Decision Date: 30 April 1900
• Docket Number: No. 350,350
• Parties: JOHN BAD ELK, Plff. in Err. , v. UNITED STATES
• Court: United States Supreme Court

177 U.S. 529

20 S.Ct. 729

44 L.Ed. 874

JOHN BAD ELK, Plff. in Err.,

v UNITED STATES.

No. 350.

Submitted February 26, 1900.

Decided April 30, 1900.

Messrs. Thos. B. McMartin and S. B. Van Buskirk for plaintiff in error.

Assistant Attorney General Boyd for defendant in error.

Mr. Justice Peckham delivered the opinion of the court:

The plaintiff in error was convicted in April, 1899, in the circuit court of the United States, in South Dakota, of the murder on March 13, 1899, of John Kills Back at the Pine Ridge Indian reservation, in South Dakota, and sentenced to be hanged. The case is brought here on writ of error to the circuit court.

Both the deceased and the plaintiff in error were Indians and policemen, residing on the reservation at the time of the killing.

Upon the trial it appeared that the plaintiff in error, on March 8, 1899, while out of doors, fired a couple of shots from his gun at or near the place where he resided. Soon after the firing, one Captain Gleason, who stated that he was what is called an 'additional farmer' on the same reservation, having heard the shots, and meeting the plaintiff in error, asked him if he had done that shooting, and he said that he had; that 'he had shot into the air for fun;' to which Gleason responded by saying to him, 'Come around to the office in a little while, and we will talk the matter over.' Thereupon they separated. As he did not come to the office, Gleason, after waiting several days, gave verbal orders to three of the Indian policemen to go and arrest plaintiff in error at his mother's house near by and take him to the agency, some 25 miles distant. No reason for making the arrest was given, nor any charge made against him. The policemen, one of whom was the deceased, went to the house where the plaintiff in error was stopping, and came back and reported to Gleason that he was not there, and they were then ordered to return and wait for him and to arrest him. They returned to the house, but came back again and reported that the plaintiff in error said that he would go with them to the agency in the morning; that it was too late to go with them that night. Gleason then told them to watch him and see that he did not go away, and in the morning to take him to the Pine Ridge agency.

The policemen then again went back to the house where plaintiff in error was staying and met him coming towards his mother's place. He went into the house, and one of their number followed him; found him smoking, and told him that they had come to take him to the agency at Pine Ridge. Plaintiff in error refused to go, and the policeman went outside. Another of them then went into the house, and in a few minutes both he and the plaintiff in error came out, and the latter saddled his horse and went over to the house of a friend, and they followed him. It was getting dark when he came back to his mother's house, still followed by them, and while following the plaintiff in error to his house on this last occasion they were joined by others, so that when he went into the house there were four or five men standing about it. In a short time the plaintiff in error came out, and asked of those outside, 'What are you here bothering me for?' The deceased said: 'Cousin, you are a policeman, and know what the rules and orders are.' To which plaintiff in error replied: 'Yes; I know what the rules and orders are, but I told you I would go with you to Pine Ridge in the morning.' Then, according to the evidence for the prosecution, the plaintiff in error, without further provocation, shot the deceased, who died within a few minutes.

The policemen had their arms with them when they went up to where the plaintiff in error was at the time the shooting was done.

This is substantially the case made by the prosecution.

There is an entire absence of any evidence of a complaint having been made before any magistrate or officer charging an offense against the plaintiff in error, and there is no proof that he had been guilty of any criminal offense, or that he had even violated any rule or regulation for the government of the Indians on the reservation, or that any warrant had been issued for his arrest. On the contrary, Gleason swears that his orders to arrest plaintiff in error were not in writing, but given orally. Indeed, it does not appear that Gleason had any authority even to entertain a complaint or to issue a warrant in any event.

The plaintiff in error testified in his own behalf, and said that during the day he had been looking after the schools along the creek near the station; that that was his duty as a policeman; that he arrived at his mother's house about half past four in the afternoon, and soon afterwards an Indian named High Eagle came into the house, staid a minute or two, but did not speak, then went out doors, and Lone Bear came in, and said that he was directed to take the plaintiff in error to Pine Ridge to Major Clapp. To which the plaintiff replied: 'All right, but my horse is used up, and I shall have to go to my brother's, Harrison White Thunder's, and get another horse.' Lone Bear said all right. Then the plaintiff in error started for his brother's, and when he got there found that the horses were out on the range, and when they came in his brother promised to bring one of them down to him. In this he was corroborated by his brother, who testified that he brought the horse over about dark. On his way back to his mother's the plaintiff in error stopped at a friend's and got a Winchester rifle for the purpose, as he said, of shooting prairie chickens. When he went back to his mother's he was there but a short time when the deceased and two or three others came to his house to arrest him, and the plaintiff in error went out, and according to his testimony the following was what occurred: 'I asked John Kills Back and High Eagle what they were there bothering me all the while for. John Kills Back said: 'You are a policeman, and know what the rules are.' I said: 'Yes, I know what the rules are, but I told you that I would go to Pine Ridge agency in the morning.' Then the deceased moved a little forward, and put his hand around as if to reach for his gun. I saw the gun and shot; then I shot twice more, and John Kills Back and High Eagle ran off. John Kills Back fell after he had gone a short distance. I shot because I knew that they (John Kills Back and High Eagle) would shoot me. I saw their revolvers at the time I shot.' This was in substance all the evidence.

Counsel for plaintiff in error asked the court to charge as follows:

'From the evidence as it appears in this action, none of the policemen who sought to arrest the defendant in this action prior to the killing of the deceased, John Kills Back, were justified in arresting the defendant, and he had a right to use such force as a reasonably prudent person might do in resisting such arrest by them.'

The court denied the request and counsel excepted.

The court charged the jury, among other things, as follows:

'The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. It is claimed on the part of the defendant that he made no resistance, and he was willing to go with the officer in the morning. I charge you, of course, that the officer, John Kills Back, had a right to determine for himself when this man should go to the agency with him.

* * * * * 'In this connection I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant he would have had the right to show his revolver. He would have had the right to use only so much force as was necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgotten his duties as an officer, and had gone beyoud the force necessary to arrest defendant, and was about to kill him or to inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest.'

This charge was duly excepted to.

We think the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error, and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

The evidence as to the facts immediately preceding the killing was contradictory; the prosecution showing a killing...