- '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' hogpen, 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 thiry yards away. He told us to stop, and we
stood there till he got through the fence, and [Page 157 U.S. 675, 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.'
Mr. Justice Brewer dissenting.
Solicitor General Conrad, for the United States.
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 17; Alexander Allen, the defendant, about 15; and the other participants were about 12 and 13 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. 675, 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
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. U. S., [Page 157 U.S. 675, 681] 153 U.S. 183, 14 Sup. Ct. 806, 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. U. S., 155 U.S. 271, 15 Sup. Ct. 73, 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 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.
Mr. Justice BREWER dissented.