When two counts in an indictment for murder differ from each
other only in stating the manner in which the murder was committed,
the question whether the prosecution shall be compelled to elect
under which it will proceed is a matter within the discretion of
the trial court.
Certain testimony held not to prejudice the defendants, but
rather tending to bear in their favor, if at all material.
Confessions are not rendered inadmissible by the fact that the
parties are in custody, provided that they are not extorted by
inducements or threats.
The plaintiffs in error were indicted for the murder on January
15, 1895, in the Cherokee Nation, in the Indian country, of one
William Vandeveer, a white man, and not an Indian. There were two
counts in the indictment. The first charged the murder to have been
committed with a gun, and the second charged it to have been
committed "with a certain blunt instrument." The jury found both
defendants guilty of murder as charged in the first count, and they
were accordingly both sentenced to death.
Page 160 U. S. 356
MR. JUSTICE BROWN delivered the opinion of the Court.
This case was submitted upon the brief of the Attorney General,
and upon the material parts of the record. Defendants did not
appear at the hearing.
1. The first error assigned is to the refusal of the court to
compel the government to elect upon which count of the indictment
it would proceed. The two counts differ from each other only in
stating the manner in which the murder was committed. Testimony was
introduced upon the trial tending to show that deceased had been
shot in the forehead, and also hit on the head with a hammer. The
question whether the prosecution should be compelled to elect was a
matter purely within the discretion of the court.
Pointer v.
United States, 151 U. S. 396.
2. As no exceptions were taken to the charge of the court, and
but one to the admission of testimony, the bill of exceptions,
which was very voluminous, was not printed in full. But the charge
of the court and the testimony of the defendants were printed, as
well as an abstract of the testimony of a single witness, Andrew
Brown, who testified that on Monday evening, January 19, he saw the
two defendants, with another man, close to his place; that they
were traveling with a mule team and a covered wagon, with a gray
mare and colt following; that before daylight next morning, he saw
the same outfit, except there was no third man with defendants;
that he went for his nearest neighbor, a Mr. West, and with him
searched the place where the defendants had camped, finding blood
all around; that Mr. West took up a blanket, and something like a
pint of blood ran out of it; he just dropped it, and said, "Brown,
what kind of blood is that?" The answer to this was objected to,
and the objection overruled, and an exception taken. The witness
answered: "I don't know what kind of blood it is. It is blood." He
says, "May be they have killed one of my hogs." I says, "We will
see." This testimony clearly did not tend to prejudice the
defendants, and, if it were material at all, bore rather in their
favor than against them.
Page 160 U. S. 357
3. The admission of certain statements made by the defendants
while they were under arrest and handcuffed was also objected to.
No exception was taken to the admission of this testimony, and the
court properly held that the mere presence of officers is not an
influence. Confessions are not rendered inadmissible by the fact
that the parties are in custody, provided that such confessions are
not extorted by inducements or threats.
Hopt v. People,
110 U. S. 574,
110 U. S. 583;
Sparf v. United States, 156 U. S. 51,
156 U. S. 55.
The so-called confessions show merely that the defendants acted in
a somewhat suspicious manner when first arrested, saying: "If we
killed him, you prove it;" "That is for us to know, and you to find
out," and that they refused to tell their names. There was clearly
no objection to this testimony.
No exception was taken to the charge, and, after a careful
reading of it, we see nothing of which the defendants were justly
entitled to complain.
The judgment is therefore
Affirmed.
