Stewart v. United States

• Decision Date: 02 February 1914
• Docket Number: 2320.
• Citation: 211 F. 41
• Parties: STEWART v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F. 41

STEWART v. UNITED STATES.

No. 2320.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

The plaintiff in error, hereinafter designated the defendant, was jointly indicted with one John B. Goodwin for the crime of murder in the killing of one Fred Kibbe. The indictment was returned in May, 1911, by the grand jury for the Fifth judicial district of the then territory of Arizona, and charged the offense to have been committed on September 15 1910, in that district, 'within and upon the White Mountain Indian reservation,' and alleged that the defendant was 'a white person and not an Indian. ' A severance, being demanded by defendant, was granted, and, the territory having been admitted to the Union before the trial, the indictment was transferred from the territorial court to the court below, where a trial was had, resulting in a verdict of murder in the first degree, without qualification, and defendant was adjudged to suffer death. From the judgment and an order denying him a new trial, he prosecutes this writ of error.

While but three errors are specified in the formal assignment of errors found in the record, the defendant has in his brief specified several additional rulings of which he complains as involving prejudicial error, and in that regard it is stated that by reason of delay, over which defendant had no control in the completion of the transcript of the evidence by the reporter, he was unable, at the time of suing out his writ of error, to present a more full and complete assignment than that found in the record; and he asks that the additional errors as assigned in his brief be reviewed by the court under the rule which authorizes the court to notice prejudicial error found in the record, although not formally assigned. As the record discloses some considerable delay in the completion of the transcript, without apparent responsibility by the defendant, the court is disposed, in view of the gravity of the case, to accord to it the consideration requested, and we proceed to a review of the various rulings complained of. While no question is made as to the sufficiency of the evidence to sustain the verdict, a brief statement of the salient facts will conduce to a readier appreciation of the pertinency and materiality of the errors urged.

The evidence of the government shows without controversy that one Fred Kibbe and one Alfred Hillpot were shot and Killed about dusk on the evening of the 15th of September, 1910, at a remote wayside stopping place, commonly known as 'Tuttle's Station,' upon the White Mountain Indian reservation, in Gila county, Ariz. The defendant at the time of the homicide was, and had been for some months prior thereto, in charge of the station for the owner, and Goodwin, his codefendant in the indictment, whom he had previously served with in the army, had been staying with him at the house for several weeks. Kibbe and Hillpot, two young men from Globe, with whom they had no previous acquaintance came to the station on September the 14th, the day before the homicide, on a hunting trip, having with them two riding horses and a hunting outfit. The defendant and his companion Goodwin were alone at the station and invited them to put up with them and make the place their headquarters for their hunt. This invitation was accepted. The next evening about 8 o'clock, while the four men were lounging in the main room of the building, Kibbe sitting by a table and Hillpot lying down in one corner, the two latter were, without warning or any previous altercation, shot to death by the defendant and his companion Goodwin, or by one of them. Kibbe was shot through the head with a revolver, and never spoke; Hillpot was shot three times with a rifle and, not being instantly killed, his skull was crushed by blows from the weapon, wielded as a club, and a deep wound inflicted in his throat with a knife, severing the aorta. The defendant and Goodwin immediately rifled the bodies of the slain men of money and other personal effects, took their arms and saddle horses, and within the hour fled from the place and disappeared. The crime being discovered the next morning, they were trailed by the officers and apprehended about a week later at a small railway station in a distant part of the territory, and, upon being searched, several articles of personal property belonging to the dead men were found in their possession, a watch and purse on Goodwin, and two purses and two revolvers on the defendant. No arms were found at the time on Goodwin. They were wearing the hats of the dead men. Their horses, saddles, and rifles had been abandoned.

When asked by the officers why they had killed the two men, defendant answered that they 'had a fight over a dog; that they had to do it, and it was in self-defense. ' This statement was corroborated at the time by Goodwin. Substantially the same statement was made by the defendant after being taken to the county jail; but some little time later he repudiated this version of the killing and stated that the story was concocted by Goodwin, who induced him to tell it; that the truth was that Goodwin alone had killed the men and coerced the defendant, through fear of bodily injury, to go with him when he fled. At the trial defendant adhered to this latter version, denying that he killed either of the two men or that he had anything to do with it further than to take a purse from the body of Hillpot after the killing, and that this was done under Goodwin's direction and induced by fear of bodily harm from the latter, who was armed. He testified that Goodwin, before the killing of Kibbe and Hillpot, had suggested the killing of several other people, including Mr. Tuttle, the proprietor of the station. He denied making some of the statements testified to by the officers, while admitting the truth of others, but said that Goodwin made up the story and induced him to tell it, and that 'it was intended as a joke. ' He was the sole witness for the defense.

Benton Dick, of Phoenix, Ariz., for plaintiff in error.

J. E. Morrison, U.S. Atty., of Bisbee, Ariz., and J. C. Forest and O. T. Richey, both of Phoenix, Ariz., for the United States.

Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District Judge.

VAN FLEET, District Judge (after stating the facts as above).

1. Considering the assignments in the order in which they are discussed in the brief, the first is that the court committed prejudicial error in its charge to the jury on the subject of the defendant's flight from the scene of the homicide. The extract from the charge which is complained of is this:

'The flight of the defendant with Goodwin from the place of the murder is also evidence of guilt and a fact for your consideration.'

It is said that this is virtually an instruction that as a matter of law the defendant was guilty of the offense charged if he fled from the scene of the crime, and was a palpable invasion of the province of the jury to find the effect of that fact in the light of all the evidence. We are not inclined to regard this language, standing alone, as open to the interpretation thus put upon it, or that it would be so understood by the average mind, but we are quite certain that it cannot be so construed when read, as it must be, with its context. The entire feature of the charge bearing upon the question was this:

'The defense of Stewart is that he did not kill Kibbe, and did not participate in the commission of the crime by any act of his own, or by any agreement, plan, or understanding with Goodwin. The defendant admits that he participated in the robbery of the bodies of Hillpot and Kibbe. The statute provides that the killing of a human being committed in the perpetration of or attempt to perpetrate a robbery is murder. The fact of robbery is therefore a direct admission for your consideration. The flight of the defendant with Goodwin from the place of the murder is also evidence of guilt and a fact for your consideration. The only answer the defendant makes to these admitted facts is that he was compelled by Goodwin to do as he did. Is this answer sufficient in the light of all the events and surrounding circumstances? This is the question you are called upon to answer by your verdict.'

It is quite apparent, we think, that by this language the court did no more in effect than tell the jury that defendant's flight, which he admitted, like the admission of robbery, was a fact tending to show guilt, which they could take into consideration in determining the ultimate fact; and, while the language was perhaps not as discriminatingly chosen to convey the meaning as it might have been with more mature opportunity for deliberation, we are satisfied that under the circumstances presented to them by the evidence and the charge in its entirety the jury would necessarily so understand it. It is not materially different from the language of the charge construed in Allen v. United States, 164 U.S. 492, 498, 17 Sup.Ct. 154, 156, 41 L.Ed. 528, where the court, distinguishing it from that held erroneous in Hickory v. United States, 160 U.S. 408, 422, 16 Sup.Ct. 327, 40 L.Ed. 474, and in Alberty v. United States, 162 U.S. 499, 509, 16 Sup.Ct. 864, 40 L.Ed. 1051, say:

'But in neither of these cases was it intimated that the flight of the accused was not a circumstance proper to be laid before the jury as having a tendency to prove his guilt. Several authorities were quoted in the Hickory Case (160 U.S. 417, 16 Sup.Ct. 327, 40 L.Ed. 474) as tending to establish this proposition. Indeed, the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt. Whart. on Homicide, Sec. 710; People v. Pitcher, 15

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