W. lived on a tract of land next to one owned and occupied by
his father in law Z., concerning the boundary between which there
was a dispute between them. While W. was ploughing his land, Z.,
being then under the influence of liquor, entered upon the disputed
tract and brought a quantity of posts there for the purpose of
erecting a fence on the line which he claimed. W. ordered him off
and continued his ploughing. He did not leave, and W., after
reaching his boundary with the plough, unhitched his horses and put
them in the barn. In about half an hour, he returned with a gun,
and an altercation ensued in the course of which W. was stabbed by
a son of Z. and Z. was killed by a shot from W.'s gun. W. was
indicted for murder. On the trial, evidence was offered in defense,
and excluded, of threats of Z. to kill W., and W. himself was put
upon the stand and, after stating that he did not feel safe without
some protection against Z., and that Z. had made a hostile
demonstration against him, was asked, from that demonstration what
he believed Z. was about to do? This question was ruled out.
Held that if W. believed and had reasonable ground for the
belief that he was in imminent danger of death or great bodily harm
from Z. at the moment he fired, and would not have fired but for
such belief, and if that belief, founded on reasonable ground,
might in any view the jury could properly take of the circumstances
surrounding the killing, have excused his act or reduced the crime
from murder to manslaughter, then the evidence in respect of Z's
threats was relevant and it was error to exclude it, and it was
also error to refuse to allow the question to be put to W. as to
his belief based on the demonstration on Z's part to which he
testified.
Page 162 U. S. 467
Where a difficulty is intentionally brought on for the purpose
of killing the deceased, the fact of imminent danger to the accused
constitutes no defense; but where the accused embarks in a quarrel
with no felonious intent, or malice, or premeditated purpose of
doing bodily harm or killing, and under reasonable belief of
imminent danger he inflicts a fatal wound, it is not murder.
Jerry Wallace was convicted at the May term, 1895, of the
District Court of the United States for the District of Kansas, of
the murder of Alexander Zane on March 7, 1895, at the Wyandotte
Indian reservation, and sentenced to be hanged.
The evidence tended to show that Wallace had lived on that
reservation for four years, on a piece of land owned by his wife,
Jane, a daughter of Alexander Zane, to whom he was married in 1891.
Ill feeling had for a long time existed between Zane and Wallace,
growing out of a dispute between them as to the true boundary line
of the land owned or claimed by June Wallace, and on which she
resided, and the land of Julia, a minor daughter of Alexander Zane.
Surveys had been made, and patents had issued, but the true
boundary line, if established by the surveys, had not been accepted
by the parties. March 7, 1895, about seven o'clock in the morning,
Alexander Zane, accompanied by his son Noah, who was about fifteen
years of age, and three other parties, proceeded, with two wagons
loaded with posts, from his farm to the land on which Wallace
resided, and entered the land on which Wallace resided, which he
was at that moment engaged in plowing, through a gap in the fence
made by Alexander Zane, and went across it to the fence on the
eastern side, and there began to unload the posts and to plant or
drive them into the ground along the fence line which they proposed
to establish. Wallace and one Denmark were engaged in plowing the
field, being in different parts and moving in opposite directions.
As Zane and his party entered the field, and were crossing it,
Wallace was plowing towards its eastern side, which he had reached,
and was returning when Zane and his party passed about fifty or
sixty yards from him, moving in a southeasterly course. Wallace had
impaired eyesight, and did not see Zane until just before he
passed, and then called to him, saying,
Page 162 U. S. 468
"Alexander Zane, if that is you, take your force and get out of
this field," or, as it was put by one or more of the witnesses,
"Alexander Zane, I want you to take your mob and get off these
premises." There was evidence tending to show that Zane and those
who were with him had been drinking, and that they were boisterous,
singing and hallooing. Defendant testified: "They were noisy,
hollering and singing, and acting as if they were drunk, to me, and
I guess, no doubt, was." Zane appears to have made no reply to
Wallace, but went on his way. Wallace continued on with his plow
until he had reached a ravine that ran north and south through the
field, where he halted, unhitched his horses from the plow, and
took them up to the barn. In about half an hour, he returned with a
double-barreled shotgun in his hands, passed within a few feet of a
group of persons consisting of Denmark, his daughter, one Lewis,
and Wallace's wife, and, in passing, said to his wife, "Now, Janie,
I want you to order these gentlemen out of here." Mrs. Wallace then
ordered Alexander Zane and those who were with him to leave, but
they paid no attention to her. Thereupon Wallace ordered Zane to
leave, and said to him, "Are you going?" Zane was standing with his
right hand on a post he had driven in the ground, and his left arm
hanging by his side.
Wallace testified:
"I asked of him whether he was going or not, and about this time
I was struck in the back, and Mr. Zane made a grab like this
(indicating), and he was standing with his right hand on a post.
About the time I was struck in the back he made this motion
(indicating), and says, 'Damn you, I will kill you,' and then my
wife hollers, or least she says, 'Look out, Jerry,' and I fired
this gun."
Lafayette Lewis, another witness, testified:
"His wife ordered them out, and Jerry, also, and he asked Zane
if he was going to go, but I never heard Zane say a word, and then
he told him the second time, and he looked up towards him, with his
left hand on the post and threw his hand up this way (indicating),
and said, 'Damn you, I am going to kill you,' . . . When Jerry
ordered him the second time, he turned, and kind of looked at him,
and threw his hand up this
Page 162 U. S. 469
way, to his bosom, and said, 'Damn you, I will kill you,' and at
that moment the boy struck Jerry with the knife, and Jerry shot
him."
Several other witnesses did not see or hear any word or gesture
proceed from Zane, but testified that when Wallace said to Zane,
"Are you going?," he immediately raised his gun, aimed it at Zane,
and fired, shooting Zane in the left breast; that Zane walked off
about thirty feet and fell, and, when those nearest him reached
him, he was dead; that when Wallace fired his gun at Zane, Noah
Zane ran up and stabbed him in the shoulder with a pocketknife,
whereupon Wallace turned and pointed his gun at Noah, and the gun
snapped. When Zane fell, Noah went to him and took from his person
a tomahawk or small hatchet, which was the only thing in the way of
a weapon found on him.
There was evidence to the effect that the wound thus inflicted
on Wallace penetrated about half an inch, bled considerably, was
much swollen, and that his stomach was black and blue, as though he
had been hit with something, as he testified that he was.
Evidence was also adduced that Zane was in the habit of carrying
a butcher knife with him in his belt; that he was quarrelsome, and
that Wallace had the reputation of being a peaceable and quiet man.
In reference to the survey under which Zane claimed, testimony was
given tending to show, as was contended, that Zane caused the
disputed line to be so run by the chainmen as to gain four feet,
and that Zane said "when he got through with the land, he wouldn't
leave Jerry Wallace a garden spot; that he could haul it away in a
wagon box."
Defendant offered to prove by R. C. Patterson that the day
before the shooting occurred, he had a conversation with Zane, "in
which Zane said to him that he was going down there to build a
fence across this property of Wallace's the next day, and, if Jerry
Wallace fooled with him, he would kill the blind son of a bitch."
This was objected to, the objection sustained, and defendant
excepted. Also that in the same conversation, Zane stated that he
had got some whisky "for the purpose of
Page 162 U. S. 470
bracing himself up for the purpose of building this fence across
the land of this defendant, Jerry Wallace." Plaintiff objected, the
court sustained the objection, and defendant excepted.
Defendant further offered to prove by Charles Luke that he had a
conversation with Zane the day before the killing, and
"Alex Zane said to this witness that he was going down to build
a fence across Wallace's land, and that if Jerry Wallace interfered
with him, that he would kill him, or shoot the blind son of a
bitch,"
and that all these threats were communicated to Wallace.
Plaintiff objected, the objection was sustained, and defendant
excepted.
Defendant offered to prove by Mrs. Alice Sargent that somewhere
near the middle of February, 1895, she had a conversation with
Zane, on which occasion
"Alex Zane said to this woman, and threatened, that he would
kill Jerry Wallace, and that he had a knife that he was carrying at
that time for that purpose, and that these threats were
communicated to Jerry Wallace by this witness afterwards."
This was objected to, the objection sustained, and defendant
excepted. A similar offer of proof by one Taylor was made, and a
similar exception taken. Defendant also offered to prove by Samuel
Collins
"that at a time shortly before the 7th of March last, he met
Alexander Zane, and had a conversation with Alexander Zane about
Jerry Wallace, and that in that conversation he threatened to kill
Jerry Wallace, and that he said to this witness that he at one time
made him look down the muzzle of a double-barreled shotgun, and he
wished he had killed him at that time, and that these threats were
communicated to the defendant."
An offer to prove similar threats prior to the homicide by Mary
Crow was made, excluded, and exception taken.
When the defendant was on the stand, he testified that he took
the gun into the field because he was afraid of the party, and
especially of Alexander Zane, and did not feel safe without some
protection. The following questions were put, and ruling made:
"Q. You may state, Mr. Wallace, what Zane did at that time, just
before you fired the shot."
"A. He just
Page 162 U. S. 471
took his hand something like this (indicating), saying, 'Damn
you, I will kill you.'"
"Q. You may state to the jury, from that demonstration, what you
believed Zane was about to do."
To this question plaintiff objected, the objection was
sustained, and defendant excepted.
Various errors were assigned in respect of the jurisdiction of
the court, the sufficiency of the indictment, the want of due
service of the list of jurors, and instructions given and
refused.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
If Jerry Wallace believed, and had reasonable ground for the
belief, that he was in imminent danger of death or great bodily
harm from Zane at the moment he fired, and would not have fired but
for such belief, and if that belief, founded on reasonable ground,
might, in any view the jury could properly take of the
circumstances surrounding the killing, have excused his act or
reduced the crime from murder to manslaughter, then the evidence in
respect of Zane's threats was relevant, and it was error to exclude
it, and it was also error to refuse to allow the question to be put
to Wallace as to his belief based on the demonstration on Zane's
part to which he testified.
Where a difficulty is intentionally brought on for the purpose
of killing the deceased, the fact of imminent danger to the accused
constitutes no defense; but where the accused embarks in a quarrel
with no felonious intent or malice, or premeditated purpose of
doing bodily harm or killing, and, under reasonable belief of
imminent danger, he inflicts a fatal wound, it is not murder.
Whart.Hom. § 197; 2 Bish.Cr.Law, §§ 702, 715; 4 Am.
and Eng.Ency.Law 675;
State v. Partlow,
Page 162 U. S. 472
90 Mo. 608;
Adams v. People, 47 Ill. 376;
State v.
Hayes, 23 Mo. 287;
State v. McDonell, 32 Vt. 491;
Reed v. State, 11 Tex.App. 509.
In
Adams v. People, it was ruled by the Supreme Court
of Illinois, speaking through Mr. Chief Justice Breese, that where
the accused sought a difficulty with the deceased for the purpose
of killing him, and in the fight did kill him in pursuance of his
malicious intention, he would be guilty of murder, but if the jury
found that the accused voluntarily got into the difficulty or fight
with the deceased, not intending to kill at the time but not
declining further fighting before the mortal blow was struck by
him, and finally drew his knife and with it killed the deceased,
the accused would be guilty of manslaughter, although the cutting
and killing were done in order to prevent an assault upon him by
the deceased or to prevent the deceased from getting the advantage
in the fight.
In
Reed v. State, the court of appeals of Texas, in
treating of the subject of self-defense, said:
"It may be divided into two general classes, to-wit, perfect and
imperfect right of self-defense. A perfect right of self-defense
can only obtain and avail where the party pleading it acted from
necessity, and was wholly free from wrong or blame in occasioning
or producing the necessity which required his action. If, however,
he was in the wrong -- if he was himself violating, or in the act
of violating, the law -- and, on account of his own wrong, was
placed in a situation wherein it became necessary for him to defend
himself against an attack made upon himself, which was superinduced
or created by his own wrong, then the law justly limits his right
of self-defense, and regulates it according to the magnitude of his
own wrong. Such a state of case may be said to illustrate and
determine what in law would be denominated the 'imperfect right of
self-defense.' Whenever a party, by his own wrongful act, produces
a condition of things wherein it becomes necessary for his own
safety that he should take life or do serious bodily harm, then
indeed the law wisely imputes to him his own wrong and its
consequences to the extent that they may and should be considered
in determining the grade of offense, which,
Page 162 U. S. 473
but for such acts, would never have been occasioned. . . . How
far and to what extent he will be excused or excusable in law must
depend upon the nature and character of the act he was committing
and which produced the necessity that he should defend himself.
When his own original act was in violation of law, then the law
takes that fact into consideration, in limiting his right of
defense and resistance whilst in the perpetration of such unlawful
act. If he was engaged in the commission of a felony, and, to
prevent its commission, the party seeing it, or about to be injured
thereby, makes a violent assault upon him, calculated to produce
death or serious bodily harm, and in resisting such attack he slays
his assailant, the law would impute the original wrong to the
homicide, and make it murder. But if the original wrong was or
would have been a misdemeanor, then the homicide growing out of or
occasioned by it, though in self-defense from any assault made upon
him, would be manslaughter under the law."
After quoting from these and other cases, Sherwood, J.,
delivering the opinion of the Supreme Court of Missouri in
State v. Partlow, remarked:
"Indeed, the assertion of the doctrine that one who begins a
quarrel or brings on a difficulty with the felonious purpose to
kill the person assaulted, and accomplishing such purpose, is
guilty of murder, and cannot avail himself of the doctrine of
self-defense, carries with it in its very bosom the inevitable
corollary that if the quarrel be begun without a felonious purpose,
then the homicidal act will not be murder. To deny this obvious
deduction is equivalent to the anomalous assertion that there can
be a felony without a felonious intent -- that the act done
characterizes the intent, and not the intent the act."
In this case it is evident that Wallace was bent, as far as
practicable, on defending his possession against what he regarded,
and the evidence on his behalf tended to show, was an unwarrantable
invasion. But a person cannot repel a mere trespass on his land by
the taking of life, or proceed beyond what necessity requires. When
he uses in the defense of such property a weapon which is not
deadly, and
Page 162 U. S. 474
death accidentally ensues, the killing will not exceed
manslaughter; but when a deadly weapon is employed, it may be
murder or manslaughter, according to the circumstances. 1 Hale P.C.
473; 1 Hawk.P.C. c. 31, § 34
et seq.; Foster 291;
Davison v. People, 90 Ill. 221;
People v. Payne,
8 Cal. 341;
Carroll v. State, 23 Ala. 28; 1 Whart.C.L.
§ 462, and cases cited.
Whether the killing with a deadly weapon may be reduced in any
case to manslaughter when it is the result of passion excited by a
trespass with force to property we need not consider, as the
question, perhaps in view of the interval of time during which
Wallace was seeking his gun, does not seem to have been raised.
Conceding -- though without intimating any opinion on the facts
disclosed -- that Jerry Wallace committed a crime, still the
inquiry arose as to the grade of the offense, and in respect of
that, the threats offered to be proven had an important, and, it
might be, decisive, bearing. Nor was the mere fact that Wallace
procured the gun as stated, in itself sufficient ground for their
exclusion.
In
Gourko v. United States, 153 U.
S. 183, this Court held that it was error to instruct a
jury that preparation by arming, although for self-defense only,
could not be followed in any case by manslaughter if the killing
after such arming was not in fact necessarily in self-defense, and
that if, under the circumstances on the occasion of the killing,
the crime were that of manslaughter, it was not converted into
murder by reason of the accused having previously armed
himself.
In
Beard v. United States, 158 U.
S. 550,
158 U. S. 563,
it was said:
"In our opinion, the court below erred in holding that the
accused, while on his premises, outside of his dwelling house, was
under a legal duty to get out of the way, if he could, of his
assailant, who, according to one view of the evidence, had
threatened to kill the defendant, in execution of that purpose had
armed himself with a deadly weapon, with that weapon concealed upon
his person went to the defendant's premises, despite the warning of
the latter to keep away, and by word and act indicated his purpose
to attack the accused. The defendant
Page 162 U. S. 475
was where he had a right to be when the deceased advanced upon
him in a threatening manner and with a deadly weapon, and if the
accused did not provoke the assault, and had at the time reasonable
grounds to believe, and in good faith believed, that the deceased
intended to take his life or to do him great bodily harm, he was
not obliged to retreat, nor to consider whether he could safely
retreat, but was entitled to stand his ground and meet any attack
made upon him with a deadly weapon in such way, and with such force
as, under all the circumstances, he at the moment honestly
believed, and had reasonable grounds to believe, was necessary to
save his own life or to protect himself from great bodily
injury."
In
Allison v. United States, 160 U.
S. 203, it was held that, in charging the jury on a
capital trial in respect of the possession of a deadly weapon by
the accused, it was error to ignore evidence indicating that such
possession was for an innocent purpose. The subject of threats was
there somewhat considered, and authorities cited.
Necessarily it must frequently happen that particular
circumstances qualify the character of the offense, and it is
thoroughly settled that it is for the jury to determine what effect
shall be given to circumstances having that tendency, whenever made
to appear in the evidence.
In
Stevenson v. United States, 162 U.
S. 313, we said:
"The evidence as to manslaughter need not be uncontradicted or
in any way conclusive upon the question. So long as there is some
evidence upon the subject, the proper weight to be given it is for
the jury to determine. If there were any evidence which tended to
show such a state of facts as might bring the crime within the
grade of manslaughter, it then became a proper question for the
jury to say whether the evidence were true and whether it showed
that the crime was manslaughter, instead of murder. . . . The
evidence might appear to the court to be simply overwhelming to
show that the killing was in fact murder, and not manslaughter, or
an act performed in self-defense, and yet, so long as there was
some evidence relevant to the issue of manslaughter, the
Page 162 U. S. 476
credibility and force of such evidence must be for the jury, and
cannot be matter of law, for the decision of the court."
"By § 1035 of the Revised Statutes of the United States, it
is enacted that"
"in all criminal causes, the defendant may be found guilty of
any offense the commission of which is necessarily included in that
with which he is charged in the indictment, or may be found guilty
of an attempt to commit the offense so charged,
provided
that each attempt be itself a separate offense."
"Under this statute, a defendant charged in the indictment with
the crime of murder may be found guilty of a lower grade of crime,
viz., manslaughter. There must, of course, be some
evidence which tends to bear upon that issue. The jury would not be
justified in finding a verdict of manslaughter if there were no
evidence upon which to base such a finding, and in that event the
court would have the right to instruct the jury to that effect.
Sparf v. United States, 156 U. S. 51. . . .
'Manslaughter,' at common law, was defined to be the unlawful and
felonious killing of another without any malice, either express or
implied. Whart.Am.Cr.Law (8th ed.) sec. 304. Whether there be what
is termed 'express malice,' or only implied malice, the proof to
show either is of the same nature,
viz., the circumstances
leading up to and surrounding the killing. The definition of the
crime given by section 5341 of the Revised Statutes of the United
States is substantially the same. The proof of homicide, as
necessarily involving malice, must show the facts under which the
killing was effected, and from the whole facts and circumstances
surrounding the killing the jury infers malice, or its absence.
Malice, in connection with the crime of killing, is but another
name for a certain condition of a man's heart or mind, and, as no
one can look into the heart or mind of another, the only way to
decide upon its condition at the time of a killing is to infer it
from the surrounding facts, and that inference is one of fact for a
jury. The presence or absence of this malice or mental condition
marks the boundary which separates the two crimes of murder and
manslaughter."
Treating the excluded evidence as admitted, and assuming that
Wallace would have testified that he believed from Zane's
Page 162 U. S. 477
demonstration that Zane intended to kill him, the evidence on
defendant's behalf tended to establish bad feeling between Zane and
Wallace in reference to the line between Mrs. Wallace's land and
that of Julia Zane; an attempt on Zane's part to include a part of
Mrs. Wallace's land in the Zane parcel; declarations by Zane, the
day before the homicide, that he was going the next day to run a
fence across what Wallace claimed to be his land, and threats that,
if Wallace interfered with him in so doing, Zane would kill him,
all communicated to Wallace before the homicide; previous threats,
also communicated, that he would kill Wallace; forcible entrance by
Zane, accompanied by several others, into the field claimed by
Wallace, in which he was plowing, and fencing off part of it
commenced; boisterous and disorderly manifestations on their part,
and refusals by Zane to leave when ordered to go; such
demonstrations by Zane at the moment as induced Wallace to believe
that he was in imminent danger, and action based on that belief.
Granting that the jury would have been justified in finding that
Wallace's intention in going for the gun and returning with it as
he did was to inflict bodily harm on Zane if he did not leave,
still the presumption was not an irrebuttable one, and it was for
the jury to say whether Wallace's statement that he procured the
gun only for self-protection was or was not true. And if they
believed from the evidence that this was true, and that the killing
was under reasonable apprehension of imminent peril, then it was
for the jury to determine, under all the facts and circumstances,
whether Wallace had committed the offense of manslaughter, rather
than that of murder, if he could not be excused altogether.
We think that the threats were admissible in evidence, and, this
being so, that the question as to Wallace's belief should not have
been excluded. It has been often decided that where the intent is a
material question, the accused may testify in his own behalf as to
what his intent was in doing the act.
People v. Baker, 96
N.Y. 340;
Thurston v. Cornell, 38 N.Y. 281;
Over v.
Schiffling, 102 Ind. 191;
People v. Quick, 51
Mich.
Page 162 U. S. 478
547;
State v. Banks, 73 Mo. 592;
Fenwick v.
Maryland, 63 Md. 239. In the latter case, it was held that a
person on trial for an assault with intent to commit murder is
competent to testify as to the purpose for which he procured the
instrument with which he committed the assault.
This rule is not controverted, but it is contended that
Wallace's belief was immaterial. For the reasons given, we cannot
concur in that view, and are of opinion that the witness should
have been allowed to answer.
It is unnecessary to pass upon any of the other points raised on
behalf of plaintiff in error.
Judgment reversed, and cause remanded, with a direction to
set aside the verdict and grant a new trial.
