In a trial for murder by shooting with a pistol, it appeared
that the accused and the deceased had had difficulties; that the
accused, knowing that he was to meet the deceased, had armed
himself with a pistol; that when they met, the deceased and his
companions were armed with sticks; that an altercation ensued which
resulted in the shooting, and the evidence was conflicting as to
who had made the first attack. The court, under exception,
instructed the jury as follows:
"Now gentlemen, these are the three conditions which I give you
in the case. I have told you that if it is true that this defendant
went up on one side of the fence and when there struck Philip
Henson in the mouth and then shot him, that is murder. On the other
hand, if it is true that Henson and the other boys attacked him
with sticks, and while that attack was going on and in the heat of
that affray, and the sticks were not of a dangerous or deadly
character, and under such circumstances he shot and killed Philip
Henson, that would be manslaughter; but if there was an absence of
that condition, then there is no manslaughter in it, nor could
there be any self-defense in it. There could be nothing else but
this distinct grade of crime known as murder, because self-defense,
as I have before defined
Page 157 U. S. 676
to you, contemplates the doing of something upon the part of the
one slain, or the ones acting with him, that was either actually
and really so apparently of a deadly character, or which threatened
great violence to the person, or that which seemed to do so. If
they assaulted him with these sticks, and they were not deadly
weapons, and they were engaged in a conflict, and in that conflict
the defendant shot Philip Henson, without previous preparation,
without previous deliberation, without previous selection of a
deadly weapon, without a contemplated purpose to use that deadly
weapon in a dangerous way, then that would be manslaughter, and it
could not be self-defense, because the injury received would not be
of that deadly character or that dangerous nature that could give a
man the right to slay another because of threatened deadly injury
or actual great bodily injury received."
Held that this instruction was erroneous in withdrawing
from the jury the question of self-defense, and likewise in telling
them that the intentional arming himself with a pistol by the
defendant, even if with a view to self-defense, would make a case
of murder unless the actual affray developed a case of necessary
self-defense.
In the Circuit Court of the United States for the Western
District of Arkansas at the May term, 1894, Alexander Allen was
tried and found guilty of the murder of one Philip Henson.
The evidence certified to us by the bill of exceptions shows
that Philip Henson, a white boy, about seventeen years old, was
shot and killed by the defendant, a colored boy, about fifteen
years old, on May 15, 1892. It appears that two or three days
before, these boys, with several companions, had met and had a
difficulty. James Marks testified that on that occasion, Henson and
his party followed them and threw sticks at them, and said "We will
be over Saturday to settle with you." Allen, testifying in his own
behalf, said that the first time he ever saw deceased, Philip
Henson, was two days before the killing; that James Marks (on whose
farm defendant was working) and defendant were out hunting horses
when he saw Henson and other boys; that he made inquiry of them
about the horses, and that he and Jim Marks started to go across a
creek, and Henson and his companions followed them, and threw
sticks at them, and said they would kill "that nigger" the first
chance they got, and said they would settle it on Saturday.
The scene of the shooting was at or near a hog pen on
Page 157 U. S. 677
Marks' farm. There was a wire fence separating the Marks place
from an adjacent field. The testimony is contradictory as to
whether Henson and his companions crossed the fence into the Marks
farm. The Henson party had freshly cut sticks in their hands. An
altercation took place. Young Marks testified that Henson said,
when the defendant asked them what they came after, they came to
kill a nigger. The story told by Willie Erne, one of the Henson
party -- a boy of thirteen years of age -- was the clearest
statement on behalf of the prosecution of what took place. It was
as follows:
"On Saturday, Philip, George, and I started to go fishing. We
had some willow sticks to kill frogs with for bait. We went a
little over halfway, and saw some one behind Marks' hog pen, and
when we got up about the length of the court room [about seventy
feet] from the fence, and defendant got up and walked along the
fence, and we kept walking the same way we had been walking -- that
is, we were walking not towards the Marks house, but northeast the
yard fence, behind which was the defendant -- walked north. We were
not intending to go into the yard. We intended to cross north of
the yard, because that was nearest to the lake, and defendant said,
'Hello, George, where are you going?' and George said, 'Going
fishing,' and defendant said: 'Well, hold on. I heard you said I
told a lie on you.' Defendant pulled his pistol out at that time,
and George said, 'May be I did.' Defendant pulled scabbard off
pistol, and handed it to the Marks boy, and got through the fence,
and walked up to Philip Henson, and hit him in the mouth with his
left hand, and pulled down the pistol with his right hand, and
Philip grabbed it, and it shot into the ground. Then Philip dropped
the pistol, and he shot Philip under the arm, and when he turned
around he shot him in the back, and then he shot at George twice,
and hit George in the back. He then snapped the pistol at me. I was
running when he snapped at me. . . . When defendant shot Philip
once, Philip raised his stick, and I think he hit defendant with
it. Defendant put the pistol on top wire of the fence, and pointed
it at us, while we were about thirty yards away. He told us to
stop, and we stood there till he got through the fence, and
Page 157 U. S. 678
he then pulled pistol out of the scabbard and gave it to the
Marks boy, and came on up to us. We did not move. None of us said a
word to him. The Marks boy was standing at the fence, looking
through the wire, during the shooting. We did not go over on the
side next to Marks -- none of us. At the time defendant came out
towards us, Philip Henson was nearer to defendant than George and
I, and he bet Philip was larger than George."
The testimony of young Marks and of the defendant was to the
effect that the Erne boy and Philip Henson crossed over the fence
into the Marks yard, and made the first assault, and that defendant
did not draw his pistol or shoot until he had been knocked down,
and when three of the assailants were on him.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The facts, as made to appear by the testimony on both sides,
were substantially these:
The difficulty was between boys. The oldest, Philip Henson, was
about seventeen, Alexander Allen, the defendant, about fifteen, and
the other participants were about twelve and thirteen years of age.
The first encounter was on Thursday, when a quarrel took place,
sticks were thrown, and threats made. On Saturday, there was
another meeting, when hostilities were renewed. The evidence is
conflicting as to whether Henson and his party crossed the fence
into the Marks yard, and as to which party made the first assault.
An undeniable incident was that Philip Henson was fatally shot by a
pistol in the hands of Allen.
In this condition of the evidence, the court gave, under
exception, the following instruction:
"Now gentlemen, these are the three conditions which I give
Page 157 U. S. 679
you in the case: I have told you that if it is true that this
defendant went up on one side of the fence, and, when there, struck
Philip Henson in the mouth, and then shot him, that is murder. On
the other hand, if it is true that Henson and the other boys
attacked him with sticks, and while that attack was going on, and
in the heat of that affray, and the sticks were not of a dangerous
or deadly character, and under such circumstances he shot and
killed Philip Henson, that would be manslaughter; but if there was
an absence of that condition, then there is no manslaughter in it,
nor could there by any self-defense in it. There could be nothing
else but this distinct grade of crime known as murder, because
self-defense, as I have before defined to you, contemplates the
doing of something upon the part of the one slain, or the ones
acting with him, that was either actually and really so apparently
of a deadly character, or which threatened great violence to the
person, or that which seemed to do so. If they assaulted him with
these sticks, and they were not deadly weapons, and they were
engaged in a conflict, and in that conflict the defendant shot
Philip Henson without previous preparation, without previous
deliberation, without previous selection of a deadly weapon,
without a contemplated purpose to use that deadly weapon in a
dangerous way, then that would be manslaughter, and it could not be
self-defense, because the injury received would not be of that
deadly character or that dangerous nature that could give a man the
right to slay another because of threatened deadly injury or actual
great bodily injury received."
By this instruction, the jury were shut up, in effect, to find
either manslaughter or murder. The claim of self-defense was
excluded -- or rather self-defense was eliminated if the sticks
were not "deadly weapons." In this we think there was error. In one
sense it may be true that sticks or clubs are not deadly weapons.
Carrying them does not import any hostile intent, nor, even in view
of an expected affray, a design to take life. But when a fight is
actually going on, sticks and clubs may become weapons of a very
deadly character. Life may be endangered or taken by blows from
them as readily as by
Page 157 U. S. 680
balls from a pistol. Hence, we think that the jury ought not to
have been told that there "could not be any self-defense in it,"
and
"it could not be self-defense, because the injury received would
not be of that deadly character or that dangerous nature that would
give a man the right to slay another because of threatened deadly
injury, or great bodily injury received."
Such a question as that was one peculiarly for the jury, and we
think that they should have been left free to say whether the
accused had not a right, when defending himself from an attack made
by several persons using sticks, to consider himself in danger of
life or limb. The verdict found -- that of murder -- is, we think,
convincing that the jury were misled by this instruction.
But we think there was another substantial error in the
instruction complained of. The jury were told that if,
"in that conflict, the defendant shot Philip Henson without
previous preparation, without previous deliberation, without
previous selection of a deadly weapon, without a contemplated
purpose to use that deadly weapon in a dangerous way, then that
would be manslaughter, and could not be self-defense."
This was objectionable not only on the ground already considered
-- that it shut out from the consideration of the jury the claim of
self-defense -- but because of the assumption that if the
defendant, in view of the previous threats that he was to be
killed, and that Saturday had been fixed for the purpose, had armed
himself with a pistol and subsequently used it when attacked, it
would have been not only not a case of self-defense, but not even
of manslaughter, but of murder. The instruction was that using a
deadly weapon not previously selected with a purpose to use it was,
when used in circumstances of the kind shown, a case of
manslaughter. Thus, there was a necessary implication that if the
pistol had been previously procured with a view to using it in
self-defense, the defendant would be guilty of murder if he
discharged the pistol with fatal effect even while defending
himself from an attack threatening his life.
In this respect, the instruction involved the same error which
we considered in the case of
Gourko v. United
States,
Page 157 U. S. 681
153 U. S. 183, and
where it was held that a person who has an angry altercation with
another person, such as to lead him to believe that he may require
the means of self-defense in case of another encounter, may be
justified in the eye of the law in arming himself for self-defense,
and if, on meeting his adversary on a subsequent occasion, he kills
him, but not in necessary self-defense, his crime may be that of
manslaughter or murder, as the circumstances on the occasion of the
killing make it the one or the other, and that if, looking alone at
those circumstances, his crime be that of manslaughter, it is not
converted into murder by reason of his having previously armed
himself. In the case of
Thompson v. United States,
155 U. S. 271, the
same view was taken by this Court, and the judgment of the court
below was reversed because, at the trial, the jury was instructed
that
"the previous selection, preparation, and subsequent use of a
deadly weapon shows that there was a purpose to kill, contemplated
before that affray existed, and whenever that exists, when it is
done improperly and unlawfully, so that there is no law of
self-defense in it, the fact that they may have been in an actual
affray with hands or fists would not reduce the grade of the crime
to manslaughter."
This language was regarded by this Court as erroneous because it
involved the assumption that the act of the defendant in arming
himself showed a purpose to kill, formed before the actual
affray.
Being, then, of opinion that the instruction was erroneous in
withdrawing from the jury the question of self-defense, and
likewise in telling them that the intentional arming of himself
with a pistol by the defendant, even if with a view to
self-defense, would make a case of murder unless the actual affray
developed a case of necessary self-defense, we reverse the judgment
of the court below, and remand the case, with directions to set
aside the verdict and award a new trial.
Reversed.
MR. JUSTICE BREWER dissented.
