Starr v. United States

Citation153 U.S. 614,14 S.Ct. 919,38 L.Ed. 841
Decision Date14 May 1894
Docket NumberNo. 1,080,1,080
CourtUnited States Supreme Court

Henry Starr was convicted of the murder of Floyd Wilson, a white man, and not an Indian, on December 13, 1892, at the Cherokee Nation, in the Indian Territory, and November 4, 1893, sentenced to be hanged on February 20, 1894, and thereupon sued out this writ of error.

It appeared on the trial that on November 18, 1892, a warrant was issued by a United States commissioner for the western district of Arkansas for the arrest of Starr and others on a charge of larceny, which was delivered for execution to Henry E. Dickey, a deputy United States marshal, and that the marshal summoned Floyd Wilson, the deceased, as his posse to aid in the execution of the warrant. The evidence tended to show that they proceeded on horseback to the neighborhood of the place where Starr was to be found, and, after visiting several points, came to the house of one Dodge, where they concealed themselves, to await his coming; that Starr passed Dodge's house on horseback, whereupon Wilson mounted his horse, and pursued him; that the two jumped from their horses, and stood facing each other a short time, apparently talking; that it looked as if Starr 'was trying to work off away from Wilson,' when Wilson mounted his horse again, and rode up to within 25 or 30 feet of Starr, who made no effort to flee, that Wilson then sprang from his horse, threw his gun to his shoulder, and fired at Starr, who was then standing with his gun in both hands, holding it down, but, upon Wilson's shooting, returned the fire, and continued to fire rapidly; that Wilson fell, raised himself in a sitting position, jerked his sixshooter out, and fired four times, when Starr ran up to him, and fired point blank into him; Wilson died immediately afterwards. The evidence further tended to show that, during the affray, Starr fired one shot at the marshal; that he picked up Wilson's gun, found the lever out of order, could not fire it, and turned to go away, and as he turned the marshal fired at him; that the marshal's and Starr's horses ran away, but Starr caught Wilson's horse, and, mounting it, rode off. The marshal testified that at the time of this occurrence he had the writ in his possession, and had instructed Wilson as to his duties, and told him: 'Now, don't kill this boy, if possible to get along without it. We will call on him to surrender.'

One Mrs. Padget testified that she saw the transaction from a distance, called a quarter of a mile, and understood Wilson to say, 'Hold up; I have a warrant for you,' and that Starr said, 'You hold up.' She also, in answer to a question put by the district attorney, stated that, three or four weeks before the shooting, Starr told her that he guessed a marshal named Cowden was hunting for him, 'for jumping his bond.' And Dickey said, in the course of his testimony, that he went up in Starr's neighborhood to see a person 'shortly after Henry started, got out, and jumped his bond.'

The witnesses agreed that Wilson fired the first shot, and also that, during the time he was riding up to Starr, Starr did not raise his gun, or make any effort to stop Wilson. Starr was a Cherokee Indian, and at that time between 18 and 19 years of age.

The warrant was signed by Stephen Wheeler, 'Commissioner U. S. Court, Western District of Arkansas,' and tested as under seal, but no seal was affixed; and counsel for defendant objected to the warrant for the want of a seal, and took exception to its admission on that ground, though, in answer to questions by the court, they admitted that Wheeler was a United States commissioner for the western district of Arkansas at the time the writ issued, and that the signature thereto was genuine.

A. H. Garland, for plaintiff in error.

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

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

1. Exception was taken to the admission of the warrant in evidence, and also to the reference thereto as valid process in the charge of the court, upon the single ground that it bore no seal.

It is not contended that a seal is required to such a warrant by any act of congress, or any statute of the state of Arkansas; but the argument is that a warrant of arrest, at common law, was void if it were without seal, and that the commom-law rule so asserted was applicable.

In Padfield v. Cabell, Willes, 411, it was held that a warrant need not be under seal, unless required by statute, and Willes, C. J., said: 'A warrant does not, ex vi termini, apply to an instrument under seal. It signifies no more than an authority. All the books in which it said that a warrant must be under seal are founded on a case in the Year Books (14 Hen. VIII. p. 16, a), where it is said that a justice of the peace is a judge of record, and hath a seal of office, and that the inferior officer, when he sees the seal, must give credit thereto.' In Aylesbury v. Harvey, 3 Lev. 204, the defendant seized a cup under a warrant by justices of the peace, on a conviction under the excise law, to levy twenty shillings; and in answer to an objection taken to the plea, that the warrant was not pleaded with a profert, the court said: 'The statute does not require that the warrant be under hand and seal, but only in writing; and no writing is to be so pleaded, except it be a deed,' etc.

Hawk. P. C. bk. 2, c. 13, § 21, follows Lord Hale in stating the necessity of the seal to a warrant of a justice of the peace, but what Lord Hale says is this (1 Hale, P. C. 577): 'It must be under seal, though some have thought it sufficient if it be in writing, subscribed by the justice.' And he refers to Dalton's Justice, wherein it is laid down that 'their warrant or precept in writing should be under their hand and seal, or under their hand, at least.' First Ed. (1618) 287. In the third edition (1630), this is repeated, and it is further said: 'Also, the warrant of the justice of the peace should be under the seal of the said justice; for every justice of the peace, being a judge of record, hath a seal of his office; and, when he maketh a warrant under his seal to the officer, then the officer ought to give credence to the seal, for that is his authority. In re Brudnel, 14 Hen. VIII. p. 16.'

This was the ground of Lord Coke's statement (2 Inst. 590) that a mittimus 'must be in writing, in the name and under the seal of him that makes the same, expressing his office, place, and authority, by force whereof he maketh the mittimus.'

Lord Chief Justice Willes, in Padfield v. Cabell, thus explains the language of Coke, and points out that Dalton 'puts two instances of warrants only under hands,—one by Lord Chancellor Ellesmere, for a contempt, A. D. 1607; the other by Chief Justice Popham, 3 Jac. 1. There is also reference in Dalton to two precepts or warrants by justices only under their hands.'

Blackstone states that the 'warrant ought to be under the hand and seal of the justice.' 4 Bl. Comm. 290. But Chitty's note on that passage is that 'it seems sufficient if it be in writing, and signed by him, unless a seal is expressly required by a particular act of parliament,' citing Padfield v. Cabell, Willes, 411; Bull. N. P. 83. And this is repeated in 1 Chitty, Cr. Law, 38.

In Davis v. Clements, 2 N. H. 390, it was thought to be well settled, on the authority of the cases in Willes and Levinz, and Buller's N. P., that a seal was not essential, when not specifically required or provided for; and in State v. Vaughn, 1 Harp. 313, the supreme court of South Carolina announced a similar conclusion in relation to a warrant of arrest, the court saying, 'There appears to be no reason why the official act of a magistrate should be under seal, as it derives its character from the law which prescribes it.' The authori- ties were reviewed by Foster, J., in the carefully considered case of Millett v. Baker, 42 Barb. 215; and it was held that at common law a seal was not necessary, even in criminal cases, unless required by statute.

We are of opinion that there was no settled rule at common law invalidating warrants not under seal, unless the magistrate issuing the warrant had a seal of office, or a seal was required by statute, and that the warrant of a commissioner of the United States not having a seal of office, and not being required to affix a seal thereto, cannot be held void for its omission. The same result is reached under the laws of Arkansas, by section 1993 of which the requisites and form of warrant, where the offense charged is felony, are given; the form being attested 'under hand,' but not 'under seal.' Mansf. Dig. Ark. 1884, p. 505, c. 46, subc. 4, § 1993; 26 Stat. 81, 96, c. 182, § 33.

2. Counsel for defendant asked the court to give to the jury four instructions. Of these, the first does not appear to have been given; but no exception was taken to its refusal, except as involved in an exception to the action of the court in refusing the request as to all. The court modified the last three, and gave them, and the defendant excepted to the modifications, and the giving of the instructions as modified, in each instance. As the case will be sent back for a new trial on other grounds, we will not review the action of the court in respect of these instructions, further than to indicate our views as to a particular modification of instruction numbered 3.

That instruction was as follows, the additions and modifications by the court being italicized:

'The court instructs the jury that if the defendant, being placed in a position in which his life is imperilled, slay an officer of whose official character he has no notice, or had no reasonable ground to know his character, this is homicide in self-defense, if the killing was apparently necessary to save the defendant's life, nor does it matter that the officer was legally seeking to arrest the defendant, the defendant...

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