[150 U.S. 442, 444] A. H. Garland, for plaintiff in error.
Asst. Atty. Gen. Conrad, for the United States.
Mr. Justice SHIRAS delivered the opinion of the court.
In the circuit court of the United States for the western district of Arkansas, John Hicks, an Indian, was jointly indicted with Stand Rowe, also an Indian, for the murder of Andrew J. Colvard, a white man, by shooting him with a gun on the 13th of February, 1892. Rowe was killed by the officers in the attempt to arrest him, and Hicks was tried separately, and found guilty, in March, 1893. We adopt the statement of the facts in the case made in the brief for the government as correct, and as sufficient for our purposes:
Hicks testified in his own behalf, denying that he had encouraged Rowe to shoot Colvard, and alleging that he had endeavored to persuade Rowe not to shoot.
At the trial the government's evidence clearly disclosed that John Hicks, the accused, did not, as charged in the indictment, shoot the deceased, nor take any part in the physical struggle. To secure a conviction it hence became necessary to claim that the evidence showed such participation in the felonious shooting of the deceased as to make the accused an accessory, or that he so acted in aiding and abetting Rowe as to make him guilty as a principal. The prosecution relied on evidence tending to show that Rowe and Hicks co-operated in inducing Colvard to leave the house, where they and a number of others had passed the night in a drunken dance, and to accompany them up the road to the spot where the shooting took place. Evidence was likewise given by two or three men, who, from a house about 100 yards distant, were eyewitnesses of the occurrence, that the three men were seated on their horses a few feet apart; that Rowe twice raised his gun and aimed at Colvard; that Hicks was heard to laugh on both occasions; that Rowe thereupon withdrew his gun; that Hicks pulled off his hat, and, striking his horse with it, said to Colvard, 'Pull off your hat, and die like a man;' that there-upon Rowe raised his gun a third time, and fired at Colvard, whose horse then ran some distance before Colvard fell. As the horse ran, Rowe fired a second time. When Colvard's [150 U.S. 442, 447] body was subsequently examined, it was found that the first bullet had passed through his chest, inflicting a fatal wound, and that the second had not taken effect.
The language attributed to Hicks, and which he denied having used, cannot be said to have been entirely free from ambiguity. It was addressed, not to Rowe, but to Colvard. Hicks testified that Rowe was in a dangerous mood, and that he did not know whether he would shoot Colvard or Hicks. The remark made,-if made,-accompanied with the gesture of taking off his own hat, may have been an utterance of desperation, occasioned by his belief that Rowe would shoot one or both of them. That Hicks and Rowe rode off together after seeing Colvard fall was used as a fact against Hicks, pointing to a conspiracy between them. Hicks testified that he did it in fear of his life; that Rowe had demanded that he should show him the road which he wished to travel. Hicks further testified-and in this he was not contradicted-that he separated from Rowe a few minutes afterwards, on the first opportunity, and that he never afterwards had any intercourse with him, nor had he been in the company of Rowe for several weeks before the night of the fatal occurrence.
Two of the assignments of error are especially relied on by the counsel of the accused. One arises out of that portion of the charge wherein the judge sought to instruct the jury as to the evidence relied on as showing that Hicks aided and abetted Rowe in the commission of the crime. The language of the learned judge was as follows:
Another error is contained in that portion of the charge now under review, and that is the statement 'that, if Hicks was actually present at that place at the time of the firing by Stand Rowe, and he was there for the purpose of either aiding, abetting, advising, or encouraging the shooting of Andrew J. Colvard by Stand Rowe, and that, as a matter of fact, he did not do it, but was present for the purpose of aidnig or abetting or advising or encouraging his shooting, but he did not do it because it was not necessary, it was done without his assistance, [150 U.S. 442, 450] the law says there is a third condition where guilt is fastened to his act in that regard.'
We understand this language to mean that where an accomplice is present for the purpose of aiding and abetting in a murder, but refrains from so aiding and abetting because it turned out not to be necessary for the accomplishment of the common purpose, he is equally guilty as if he had actively participated by words or acts of encouragement. Thus understood, the statement might, in some instances, be a correct instruction. Thus, if there had been evidence sufficient to show that there had been a previous conspiracy between Rowe and Hicks to waylay and kill Colvard, Hicks, if present at the time of the killing, would be guilty, even if it was found unnecessary for him to act. But the error of such an instruction, in the present case, is in the fact that there was no evidence on which to base it. The evidence, so far as we are permitted to notice it, as contained in the bills of exception and set forth in the charge, shows no facts from which the jury could have properly found that the rencounter was the result of any previous conspiracy or arrangement. The jury might well, therefore, have thought that they were following the court's instructions in finding the accused guilty because he was present at the time and place of the murder, although he contributed neither by word nor action to the crime, and although there was no substantial evidence of any conspiracy or prior arrangement between him and Rowe.
Another assignment seems to us to present a substantial error. This has to do with the instructions by the learned judge to the jury on the weight which they should give to the testimony of the accused in his own behalf. Those instructions were in the following words:
The learned judge therein suggests to the jury that there was or might be 'a conflict as to material facts between the statements of the accused and the statements of the other witnesses who are telling the truth,' and that 'then you would have a contradiction that would weigh against the statements of the defendant as coming from such witness.'
The obvious objection to this suggestion is in its assumption that the other witnesses, whose statements contradicted those of the accused, were 'telling the truth.'
The learned judge further, in this instruction, argued to the jury that in considering the personal testimony of the accused they should consider 'his interest in this case.' 'You are to consider his consequent motive growing out of that interest in passing upon the truthfulness or falsity of his statement. He is in an attitude, of course, where any of us, if so situated, would have a large interest in the result of the case; the largest, perhaps, we could have under any circumstances in life; and such an interest, consequently, as might cause us to make statements to influence a jury in passing upon our case that would not be governed by the truth. We migth be led away from the truth because of our desire. Therefore it is [150 U.S. 442, 452] but right, and it is but your duty, to review the statements of such a witness in the light of his attitude and in the light of the other evidence.'
It is not easy to say what effect this instruction had upon the jury. If this were the only objectionable language contained in the charge, we might hesitate in saying that it amounted to reversible error. It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices; and perhaps a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, had provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that 'the person charged shall, at his own request, but not otherwise, be a competent witness.' The policy of this enactment should not be defeated by hostile comments of the trial judge, whose duty it is to give reasonable effect and force to the law.
These strictures cannot be regarded as inappropriate when the facts of the present case are considered. The only substantial evidence against the accused on which the jury had a right to find him guilty was that of witnesses who testified to words used by him at a distance of not less than 100 yards. Apart from the language so attributed to him, there was no evidence that would have warranted a jury in condemning him. His denial of his use of the words, and his explanation of his conduct, should, we think, have been submitted to the jury as entitled to the most careful consideration. There was nothing intrinsically improbable in his statements; and it is not without significance that the inculpatory words were not testified to by the witnesses at the preliminary examination before the commissioner when the incident was fresh in their recollection. [150 U.S. 442, 453] It is urged in the brief filed for the government that the exception which is the subject of the first assignment of error should not be considered by this court, because it embraces too large a portion of the judge's charge; and cases are cited in which this court has censured wholesale exceptions to a charge. It is justly said that the exception ought to be so precise and pointed as to call the attention of the judge to the particular error complained of, so as to afford him an opportunity to correct any inadvertence, in form or substance, into which he may have fallen. And it is further said that the revising court ought not to be compelled to search through long passages in an exception to reach errors that may be contained therein.
Conceding that such criticisms have often been justly made, we yet think that they do not apply to the exception under consideration. To enable us to form a just view of the error complained of, it was necessary, or at least useful, to cite the entire passage of the charge that covered it. To have selected certain obnoxious sentences as the subject of special exceptions might have justified the very apposite criticism that the omitted context would have explained or nullified the error.
The learned judge below seems to have been satisfied with the shape in which the exceptions were presented to him, and we think they sufficiently raise the questions we have considered.
The judgment of the court below is reversed, and the cause remanded, with directions to set aside the verdict and award a new trial.
Mr. Justice BREWER dissenting.
I dissent from the opinion and judgment of the court in this case. It seems to me that the opinion proceeds in disregard of rules long ago established in regard to the conditions under which an appeallate court will review the instructions given on the trial. Take the first matter referred to in the opinion. A page or so of the court's charge is excepted [150 U.S. 442, 454] to, and the exception is taken in this way: 'To the giving of which charge to the jury the defendant at the time excepted.' No particular sentence or proposition on this page is excepted to. No ground of objection is noted. The attention of the trial court is not directed to any matter, whether of statement or omission, which the defendant claims is objectionalbe, and so no opportunity given to correct the alleged mistake.
I understand the rule of law to be well settled that the attention of the trial court must be called to the specific matter which is claimed to be objectionable, and so called that an opportunity is given to make a correction. Non constat but that, if the attention of the court is thus called to the particular matter, it will correct, and thus remedy, any supposed error. Now, as stated, this whole page is objected to, and no grounds of objection given,-no particular matter pointed out as erroneous; and yet there can be no doubt that much of what is said, and some, at least, of the propositions found in this portion of the charge, are unobjectionable. What is there wrong, for instance, in these declarations of law:
With regard to the second error said by the court to exist in this page of the charge, it is found, as clearly appears from the opinion, only in the last sentence, and as an independent proposition. No separate exception was filed to that proposition. Could anything more clearly emphasize the fact that by this opinion the court is reversing the rule heretofore laid down as law in the quotations presently to be made, than thus picking out a single sentence containing an independent proposition, not especially excepted to, and declaring that a general exception to an entire page brings this error up for review? And that, too, when it is conceded that the objectionable words stated a proposition of law correctly applicable to some cases, though, as claimed, not to the facts of this. And here it is well to note the language of rule 4 of this court, ( 3 Sup. Ct. v.:) 'The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts, and those matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court.'
What matter of law was distinctly stated in the bill of exceptions? I understand the court to concede that the rule is substantially as I have claimed, but hold that it is inapplicable here, and that, in order to present a just view of the error complained of, it was necessary, or at least useful, to cite the entire passage of the charge that covered it. The law is good, but it ought not to be enforced. When, as here, the entire charge is preserved in the record, it is not necessary to extend an exception to a whole page, in order to see the bearing of the particular matter of alleged error. Even if the entire [150 U.S. 442, 457] charge was not preserved, and we had only this page before us, and the consideration of the entire charge was necessary to disclose the bearing of the particular sentence or proposition claimed to be erroneous,- conceding all this,-it does not obviate the difficulty that the specific error now complained of was not called to the attention of the trial court. And, after all, the rule is as shown in the quotations following,-that an objection must be made in such a way that the trial court knows what it is that is objected to, and has an opportunity to make a correction. Nothing of that kind is possible, when a party excepts to a whole page of the charge, and in the appellate court, for the first time, calls attention to the specific matter in a portion of that page which is said to be objectionable.
The suggestion that, because the learned judge below was satisfied with the shape in which the exceptions were presented to him, this court must consider them as sufficient for any matter which the ingenuity of counsel may, since the trial, have discovered, has certainly the merit of novelty. No one can say from this record that the questions which have been argued, and upon which the reversal is ordered, were ever suggested to the trial court at the time the instructions were given, or on the motion for a new trial, and they are not named in the assignments of error; and yet, because the trial judge did not direct that the exceptions be prepared in some other way, this court holds that they are sufficient to bring all the matters involved in this page of the charge before this court.
In the case of Carver v. Jackson, 4 Pet. 1-81, the entire charge was placed in the record, with a general exception to each and every part thereof. This practice was strongly condemned, and in the opinion Mr. Justice Story uses this language, quoted approvingly by Chief Justice Marshall in Ex parte Crane, 5 Pet. 191-198:
In the case of Society v. Faulkner, 91 U.S. 415 -423, this court said:
In Railroad Co. v. Varnell, 98 U.S. 479 , 482, a similar matter was presented to the court, and disposed of in these words:
See, also, Bogk v. Gassert, 149 U.S. 17, 26 , 13 S. Sup. Ct. 738.
And this, I understand, is the rule in all appellate courts. I think it should be strictly adhered to, and that this court should not notice an exception which runs to a page of the court's charge, which points out no sentence or clause which is objected to, and specifies no ground of objection.
Again, in that portion of the charge calling attention to the weight to be given to the testimony of the defendant, I think the court committed no error. The statute makes the defendant a competent witness. It affirms nothing as to his credibility. I understand the rule to be that a court is always at liberty to refer to any matters, interest, impeachment, contradiction, feeling, or otherwise, that bear upon the question of the credibility of any witness. When the defendant becomes a witness, he subjects himself to the same liability to criticism. Stress is laid upon these words, 'the other witnesses who are telling the truth,' and it is said that there is an assumption that the witnesses who contradict the defendant are telling the truth. If the first 'the' had been omitted, and the language been 'other witnesses,' etc., no such implication would arise. Is not this a refinement of criticism which offends com- [150 U.S. 442, 460] mon sense? Does any one suppose that the jury understood the court to instruct them that the witnesses for the government were telling the truth, and that the defendant was lying when he testified differently? Is it not clear that they would understand simply that their attention was called to the effect on his credibility of a contradiction between his testimony and that of disinterested witnesses? Has it come to this: that the use of the 'definite article' in a charge is sufficient to set aside a verdict, and overthrow a trial? It is undisputable that, where the government calls an accomplice, it is the right, if not the duty, of the court to call the attention of the jury to his relationship to the case, and the bearing which such relationship has upon his credibility. If it may and ought to do that to protect the defendant against the danger of perjury on the part of witnesses of the government, may it not, and ought it not, to do the same to protect the government against the at least equal danger of perjury on the defendant's part? It is the duty of the trial court to hold the scales even between the government and the defendant, and, generally speaking, what it may and ought to do on the one side it may and ought to do on the other. For these reasons, I dissent.
I am authorized to say that Mr. Justice BROWN concurs with me in this dissent.