U.S. Supreme Court
SMITH v. U S, 161 U.S. 85 (1896)
161 U.S. 85
SMITH
v.
UNITED STATES.
No. 608.
v.
UNITED STATES.
No. 608.
March 2, 1896
This was an indictment in the
circuit court of the United States for the Western district of Arkansas
for the murder, at the Cherokee Nation, in the Indian country, on
September 27, 1894, of John Welch, a negro, and not an Indian, by shooting him with a pistol.
At the trial the government
introduced evidence tending to show that Welch and the defendant, about
noon, at a fair ground in Muscogee, at a spot close by their respective
tents, and near a merry-go-round, a dance hall, gambling places,
refreshment booths, and other tents and buildings, and in the presence
of a crowd of people, fell into dispute; that the defendant ran into his
tent, and, finding one Scott Gentry inside, snatched Gentry's pistol from his belt, came out, and shot and killed Welch; and that Welch was unarmed at the time.
The defendant admitted the killing, and contended that he did it in self-defense;
and, being called as a witness in his own behalf, testified that he
knew Welch, 'was very nearly raised up with him,' and they had 'tussled
together all the way up from boys'; that Welch was a bigger and much
stronger man than himself; that he knew that Welch had a pistol
the night before; and that when he shot Welch, Welch was advancing,
with his right hand at his hip pocket, towards the defendant, and
threatening to kill him.
The defendant also called witnesses, who testified that the deceased had previously made threats
against the defendant's life; and five other witnesses, living at
Muscogee, who testified that they had known Welch for years, and that he
had the general reputation of being a man of quarrelsome and dangerous character.
Each of these
five witnesses was asked by the district attorney, on cross-examination,
whether he had ever been arrested for anything. In answer to this
question one of them testified that he had been arrested, tried, and
acquitted for murder; and had been arrested for gambling, and
discharged. A second witness testified that he had been arrested for
'fighting and gambling' only. A third witness testified that he had once
been arrested, three or four years before, and brought to Ft. Smith,
for selling whisky; and, on re-examination, that the grand jury ignored
the charge, and that he had never been convicted of anything. A fourth
witness testified that he had been arrested for 'fighting and whisky,'
but for nothing else, and had twice 'served a jail [Page 161 U.S. 85,
87] sentence for whisky.' The fifth witness testified that he had never
been arrested for anything; and there was no other evidence of the
arrest or conviction of any of these witnesses, or that any of them had
anything to do with keeping a gambling place.
The court, in
the charge to the jury, instructed them as to the evidence of the
character of the deceased as follows: 'Now, what is reputation? It is
the reflection of character. Character is the thing itself. It is that
which a man makes day after day, and hour after hour, and year after
year, by his bearing and conduct in the community where he lives. If
that thing is reflected by the words spoken by men of credit, by men of
standing, by men of pure character standing before you, that such
reputation is so reflected as that you can believe it, of course it is
entitled to consideration, and to be taken in the case if it is
applicable. But it is to come from men who are morally and mentally
competent to know what it means. If a man is without character himself,
if his action has been characterized by crime, if his conscience has
been seared by criminal conduct, he is thus rendered incompetent to know
what character is. He has none himself, and he is incompetent to
determine when other men have one. And above all is it necessary,
important, and essential to the interests of public justice that justice
should not be defeated by men of that character, scraped from the four
corners of the earth. You are to see to it that it comes from a pure
source; and then, again, you are to see to it that it is the reflection,
not by keepers of dives and gambling hells, and violators of law, and
prison convicts, but it is the reflection of honest and conscientious
men, of men who possess character themselves; men of integrity; men
whose judgments make up in your community your character that you prize
so highly, because it is the opinion of honest, intelligent, judicious,
and just men and women in your community. That is the source that
character is to come from, and the only source from which you can derive
it in a reliable way. If it does not come from that source, but comes
from the source I have designated, cast it aside as so much worthless
[Page 161 U.S. 85, 88] matter invoked wrongfully in cases of this
character.' To this instruction the defendant at the time excepted, and,
after being convicted and sentenced for murder, sued out this writ of
error.
Wm. M. Cravens, for plaintiff in error.
Asst. Atty. Gen. Whitney, for the United States.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.
The main question in controversy at the trial was whether the killing of Welch by the defendant was in self-defense.
Upon that question any evidence which, according to the common
experience of mankind, tended to show that the defendant had reasonable
cause to apprehend great bodily harm from the conduct of the deceased
towards him just before the killing, was admissible; and upon principle,
and by the weight of authority, evidence that the deceased was a larger
and more powerful man than the defendant, as well as evidence that the
deceased had the general reputation of being a quarrelsome and dangerous
person, was competent, especially if his character in this respect was
known to the defendant, which there was evidence in this case tending to
show. Wiggin v. People, 93 U.S. 465; Allison v. U. S., 160 U.S. 203, 215, 16 S. Sup. Ct. 252;
State v. Benham, 23 Iowa, 154; Com. v. Barnacle, 134 Mass. 215; Hurd v.
People, 25 Mich. 405; State v. Bryant, 55 Mo. 75; Marts v. State, 26
Ohio St. 162; State v. Nett, 50 Wis. 524, 7 N. W. 344; State v. Turpin,
77 N. C. 473; Whart. Hom. (2d Ed.) 606-623, and cases cited. In Wiggin v. People, above referred to, evidence that 'the deceased's general character was bad, and that he was a dangerous, violent, vindictive, and brutal
man' was admitted at the trial, and was assumed to be competent, both
in the opinion of this court, delivered by [Page 161 U.S. 85, 89] Mr.
Justice Miller, and in the dissenting opinion of Mr. Justice Clifford.
93 U.S. 466, 470, 474 S.
The testimony introduced by the defendant to the character of the deceased was therefore competent and material.
All that was shown by way of
impeaching the credibility of any of the five witnesses who testified to
this point, was that one of them had been arrested, tried, and
acquitted for murder, and had been arrested for gambling, and
discharged; another had been arrested for fighting and gambling; another
arrested for fighting and for selling whisky; and another arrested,
convicted, and imprisoned for selling whisky. There was no evidence that
any of the witnesses, except this one, had been convicted of any
offense whatever, or that any one of the five had anything to do with
keeping a gambling place.
Yet the court, in instructing
the jury as to the weight to be given to the evidence of the character
of the deceased, told them that reputation was the reflection of
character, and, in order to be entitled to consideration, must 'come
from a pure source,' and be 'the reflection of honest and conscientious
men, of men who possess character themselves, men of integrity, men
whose judgments make up in your community your character that you prize
so highly, because it is the opinion of honest, intelligent, judicious,
and just men and women in your community'; and that, 'if a man is
without character himself, if his action has been characterized by
crime, if his conscience has been seared by criminal conduct, he is thus
rendered incompetent to know what character is; he has none himself,
and he is incompetent to determine when other men have one'; and charged
the jury 'to see to it that it is the reflection not by keepers of
dives and gambling hells, and violators of law, and prison convicts,'
and, if it comes from that source, to 'cast it aside as so much
worthless matter invoked wrongfully in cases of this character.'
This heaping
up of injurious epithets upon the witnesses, coupled with the injunction
(which could have no application to anything before the court except
their testimony) to 'cast it aside as so much worthless matter invoked
wrongfully,' could not have been understood by the jury otherwise than as [Page 161 U.S. 85, 90] a command to disregard all the testimony introduced in behalf of the defendant bearing upon the character of the deceased as a quarrelsome and dangerous man.
The character of a quarrelsome and dangerous
man is not always so well known to peaceable and law-abiding citizens
that their testimony upon the subject can be had. In this, as in other
matters involved in the administration of the criminal law, it is often
necessary to resort to those who are more familiar with the persons
between whom, and the places in which, quarrels and affrays are apt to
take place.
No doubt has been suggested as
to the competency of any of the witnesses in question, and their
credibility was a matter to be determined by the jury. The judge having,
in effect, peremptorily withdrawn this matter from their consideration,
the defendant is entitled to a new trial. Hicks v. U. S., 150 U.S. 442, 14 Sup. Ct. 144; Starr v. U. S., 153 U.S. 614, 14 Sup. Ct. 919; Allison v. U. S., 160 U.S. 203, 16 Sup. Ct. 252.
It is, to say the least,
doubtful whether evidence of an arrest only, not followed by a
conviction, is competent to affect the credibility of a witness. Ryan v.
People, 79 N. Y. 593; Van Bokkelen v. Berdell, 130 N. Y. 141, 29 N. E.
254. But, such evidence having been admitted without objection as to
these witnesses, and having been previously introduced by the
defendant's counsel in cross-examining the witnesses for the government,
the expression of a decisive opinion upon it would be out of place.
It becomes unnecessary to consider the other exceptions to the rulings and instructions of the court.
Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial.
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