In the district court of the United States for the Western district of Arkansas, on November 23, 1893, a jury was sworn to try the issue formed between the United States and Thomas Thompson, under an indictment wherein said Thompson was charged with the murder of one Charles Hermes, and to which the accused pleaded not guilty.
After the case had been opened by counsel for the government and the defendant respectively, and after Jacob Hermes, a witness for the government, had been called and examined in chief, the judge stated that it had come to his knowledge that one of the jurors was disqualified to sit on account of having been a member of the grand jury that returned the indictment in the case. The defendant, by his counsel, ob- [155 U.S. 271, 272] jected to proceeding further in the trial of the cause with the said juror on account of his incompetency as aforesaid, whereupon the court ordered the discharge of the jury, and that another jury be called, to which action of the court the defendant, by his counsel, at the time excepted.
On November 27, 1893, the defendant filed a plea of former jeopardy, and also a motion for a jury from the body of the district; and it appearing from an examination, in the presence of the defendant, that a number of the regular panel of jurors were disqualified because of opinions formed after having heard part of the evidence, the court ordered the marshal to summon from the bystanders 28 legal voters of the Western district of Arkansas, to be used as talesmen in making up a jury for the trial of the case. On December 1st a motion was filed on behalf of the defendant to quash that part of the panel of jurors consisting of 28 men summoned from bystanders, which motion was overruled, and the petition of the defendant asking for a jury from the body of the district, drawn in the regular manner from the jury box by the jury commissioners, was refused. The government attorney then moved that a jury be called for the trial. The defendant objected to the 12 men being called who had been theretofore impaneled for the trial of the cause, which objection the court sustained, and the clerk was ordered to omit in the call the names of said jurors.
Among the jurors called by the clerk were Wilson G. Gray, William M. Perkins, and Isaac B. Sloan, who were members of the regular panel for the present term of the court, and whose names were on the list of jurors served upon defendant at the beginning of the term, and before the first jury in this cause was impaneled, and when the first jury was impaneled these three jurors were by the defendant peremptorily challenged. Their names were not upon the certified list of jurors last served upon the defendant after the first jury had been discharged. The challenge for cause made by defendant to these three jurors was overruled, whereupon the defendant peremptorily challenged them. The defendant likewise filed a written challenge for cause to the 28 men called [155 U.S. 271, 273] as talesmen, for the reasons that they did not belong to the regular panel of jurors, that they were not from the body of the district, but were all residents of the city of Ft. Smith, in the immediate neighborhood of the place of trial. This challenge was overruled.
The jury was thereupon sworn, and the trial proceeded with, resulting in a verdict, under the instructions of the court, for the government in the issue formed by the plea of former jeopardy, and in a verdict that the defendant was guilty of murder as charged in the indictment.
Motions for a new trial and in arrest of judgment were overruled, and sentence of death was pronounced against the defendant.
Upon errors alleged in the proceedings of the court, and in the charge to the jury, a writ of error was sued out to this court.
A. H. Garland, for plaintiff in error.
Asst. Atty. Gen. Whitney, for the United States.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.
The record discloses that while the trial was proceeding, a jury having been sworn and a witness examined, the fact that one of the jury was disqualified by having been a member of the grand jury that found the indictment became known to the court. Thereupon the court, without the consent of the defendant, and under exception, discharged the jury, and directed that another jury should be called. The defendant, by his counsel, pleaded that he had been once in jeopardy upon and for the same charge and offense for which he now stood charged. The court permitted this plea to be filed, and submitted the question to the jury, with instructions to find the issue in favor of the government. Such a verdict was accordingly rendered, and the cause was then disposed of [155 U.S. 271, 274] under the plea of not guilty, and resulted in a verdict of guilty under the indictment.
The defendant now seeks, in one of his assignments of error, the benefit of the constitutional provision that no person shall be subject for the same offense to be twice put in jeopardy of life and limb.
As the matter of the plea puis darrein continuance, setting out the previous discharge of a jury after having been sworn, and the plea of not guilty, were not inconsistent with each other, it accorded with the rules of criminal pleading that they might stand together, though, of course, it was necessary that the issue under the first plea should be disposed of before the cause was disposed of under the plea of the guilty. Com. v. Merrill, 8 Allen, 545; 1 Bish. Cr. Proc. 752.
As to the question raised by the plea of fomer jeopardy, it is sufficiently answered by citing U. S. v. Perez, 9 Wheat. 579; Simmons v. U. S., 142 U.S. 148 , 12 Sup. Ct. 171; and Logan v. U. S., 144 U.S. 263 , 12 Sup. Ct. 617. Those cases clearly eatablish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.
The evidence in the case substantially disclosed the following facts: The defendant, Thompson, was an Indian boy about 17 years of age, and lived with Sam Haynes, a Creek Indian, who had a farm near Okmulgee, in the Creek Nation. The deceased, Charles Hermes, lived with his father on land rented from Haynes, and distant about half a mile from the house of the latter. There was testimony tending to show ill feeling on the part of Hermes and his sons towards this Indian boy, and that they had threatened to injure him if he [155 U.S. 271, 275] came about where they were. Thompson could not speak or understand the English language, but he had been told by Haynes and another witness that old man Hermes had claimed that he, Thompson, had been abusing and killing his hogs, and that if he 'came acting the monkey around him any more he would chop his head open.'
In the afternoon of June 8, 1893, Mrs. Haynes directed the boy to take a bundle to Mrs. Checotale's, who lived two or three miles away. The boy caught a horse, got on it without a saddle, took the bundle that Mrs. Haynes gave him, and went off on his errand. Mrs. Haynes testified that he had no arms of any kind when he left her house, and that he appeared in a good humor with everybody at that time. The road to Checotale's ran by a field where the deceased, his father, and brother were working, plowing corn. There was testimony on the part of Thompson tending to show that as he rode along past the field the old man and the deceased began quarreling with him; that Thompson saw that they were angry with him, but could not understand much that was said to him, although he could tell that they were talking about hogs. Thompson says that he remembered the threats against him they had made to Haynes and Checotale, and thought they were going to hurt him. He further states that he rode on to Checotale's, where he left the bundle; that he got to thinking about what Sam Haynes had told him as to the threats that Hermes had made, and as there was no other road for him to return home by except the one alongside of the field, he thought it was best for him to arm himself, so that he could make a defense in case he was attacked; that he went by Amos Gray's house, and there armed himself with a Winchester rifle belonging to Gray. The defendant further testified that after he got the gun he went back by the road, and as he got opposite where the men were plowing the boys were near the fence, and the old man was behind; that the boys called at him, and said something about a gun, and the deceased started towards a gun that was standing in the corner of the fence, and that, thinking they intended to kill him, he drew his gun, and fired at [155 U.S. 271, 276] the deceased, and then ran away on his horse, pursued by the old man, who afterwards shot at him. These particulars of the transaction were principally testified to by Thompson himself, but he was corroborated to some extent by William Baxter and James Gregory, who testified that they visited the field where was the body of the deceased, and that Hermes, the father, described the affair to them, and, as so told, the facts differed but little from Thompson's version.
In this state of facts, or, at all events, with evidence tending to show such, the court instructed the jury at great length in respect to the law of the case. Exception was taken to the charge of the court as a whole, because it was 'prolix, confusing, abstract, argumentative, and misleading,' and this exception is the subject of one of the assignments of error. But we do not need to consider this aspect of the case, as the record discloses errors in vital portions of the charge, and specifically excepted to, which constrain us to reverse the judgment, and direct a new trial.
In instructing the jury as to the right of self-defense, the learned judge said: 'It is for you to say whether at the time of the killing of Charles Hermes by this defendant this defendant was doing what he had a right to do. If he was not, notwithstanding Charles Hermes might have made a violent demonstration that was then and there imminent, then and there impending, then and there hanging over his head, and that he could not avoid it except by killing him; if his conduct wrongfully, illegally, and improperly brought into existence that condition,-then he was not in an attitude where, in the language of the law, he was in the lawful pursuit of his business.' And again: 'Now, in this connection, we have a maxim of the law which says to us that, notwithstanding the deceased at the time of the killing may be doing that which indicates an actual, real, and deadly design, if he by his action who seeks to invoke the right of self-defense brought into existence that act upon the part of the deceased at that time by his wrongful act,-his wrongful action did it,-he is cut off from the law of self-defense, no matter what may have been the conduct of the deceased at that time.' [155 U.S. 271, 277] It is not easy to understand what the learned judge meant by those portions of these instructions in which he leaves it to the jury to say whether the defendant was 'doing what he had a right to do,' and whether the defendant brought into existence the act of the deceased, in threatening to attack the defendant, 'by his, defendant's, wrongful act.' Probably what was here adverted to was the conduct of the deceased in returning home by the same route in which he had passed the accused when going to Checotale's, and the implication seems to be that the accused was doing wrong, and was guilty of a wrongful act, in so doing. The only evidence on that subject was that of the defendant himself that he had no other mode of returning home except by that road, because of swamps on the other side of the road, and there was no evidence to the contrary.
The learned judge, in these and subsequent instructions, seems to confuse the conduct of the defendant in returning home by the only convenient road with a supposed return to the scene of a previous quarrel for the purpose of renewing it. Thus he further instructed the jury that 'if it be true that Charles Hermes, at the time of the killing, was actually and really or apparently in the act of executing a deadly design, or so near in the execution of it that the defendant could not avoid it, and that it was brought into existence by his going to that place where Charles Hermes was with the purpose of provoking a difficulty, or with the intention of having an affray, he is cut off from the law of self-defense.' And again: 'You are to look to the evidence to see whether the defendant brought that state of case into existence, to see whether or not, in consequence of a conception on his part of a state of grudge or ill will or any hard feelings that existed between the parties, that he went off and armed himself for the purpose of making an attack on Hermes, or any of the party whom the government offered as witnesses, this law of self- defense cannot avail him. Of course, the law of self-defense gives him the right to arm himself for the purpose of defending himself so long as he is in the right, but if he has a conception that deadly danger may come upon him, but he is [155 U.S. 271, 278] away from it, so he can avoid it, his duty is to stay away from it and avoid it, because he has no right to go to the place where the slain person is, with a deadly weapon, for the purpose of provoking a difficulty, or with the intent of having an affray.'
These instructions could, and naturally would, be understood by the jury as directing them that the accused lost his right of self-defense by returning home by the road that passed by the place where the deceased was, and that they should find that the fact that he had armed himself and returned by that road was evidence from which they should infer that he had gone off and armed himself and returned for the purpose of provoking a difficulty. Certainly the mere fact that the accused used the same road in returning that he had used in going from home would not warrant the inference that his return was with the purpose of provoking an affray, particularly as there was evidence that this road was the proper and convenient one. Nor did the fact that the defendant, in view of the threats that had been made against him, armed himself, justify the jury in inferring that this was with the purpose of attacking the deceased, and not of defending himself, especially in view of the testimony that the purpose of the defendant in arming himself was for self-defense.
We had occasion to correct a similar error in the recent case of Gourko v. U. S., 153 U.S. 183 , 14 Sup. Ct. 806. That was a case where the deceased had previously uttered threats against the defendant, and there had been a recent rencontre at the post office. The parties then separated, and the defendant armed himself, and subsequently, when the parties again encountered each other, the defendant shot and killed the deceased. The court instructed the jury that in those circumstances there was no right of self-defense, and that there was nothing to reduce the offense from that of murder to manslaughter.
In discussing the question, this court, by Mr. Justice Harlan, said:
We think there was also error in that portion of the charge wherein the court instructed the jury as to the effect which they should give to the evidence on the subject of previous threats uttered against the defendant by Hermes and his sons. The learned judge seems to have regarded such evidence not merely as not extenuating or excusing the act of the defendant, but as evidence from which the jury might infer special spite, special ill will, on the part of the defendant. The language of the learned judge was as follows:
While it is no doubt true that previous threats will not, in all circumstances, justify, or perhaps even extenuate, the act of the party threatened in killing the person who uttered the threats, yet it by no means follows that such threats, signifying ill will and hostility on the part of the deceased, can be used by the jury as indicating a similar state of feeling on the part of the defendant. Such an instruction was not only misleading in itself, but it was erroneous in the present case, for the further reason that it omitted all reference to the alleged conduct of the deceased at the time of the killing, which went to show an intention then and there to carry out the previous threats.
The instructions which have thus far been the subject of our criticism were mainly applicable to the contention that the defendant acted in self-defense, but they also must have been understood by the jury as extending to the other proposi- [155 U.S. 271, 282] tion that the defendant's act constituted the crime of manslaughter, and not of murder. The charge shows that the instructions of the learned judge on these two distinct defenses were so blended as to warrant the jury in believing that such instructions were applicable to both grounds of defense.
Whether this be a just view or not, there were distinct instructions given as to the contention that the act of killing in this case was manslaughter, and not murder, which we think cannot be sustained. A portion of such instructions was as follows:
The error here is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray. This was the same error that we found in the instructions regarding the right of self-defense, and brings the case within the case of Gourko v. U. S., previously cited, and the language of which we need not repeat.
These views call for a reversal of the judgment, and it is therefore unnecessary to consider the assignments that allege errors in the selection of the jury.
The judgment is reversed, and the cause remanded for a new trial.