The evidence certified to us by the bill of exceptions shows that Philip Henson, a white boy, about 17 years old, was shot and killed by the defendant, a colored boy, about 15 years old, on May 15, 1892. It appears that two or three days before these boys, with several companions, had met and had a difficulty. James Marks testified that, on that occasion, Henson and his party followed them, and threw sticks at them, and said 'We will be over Saturday to settle with you.' Allen, testifying in his own behalf, said that the first time he ever saw deceased, Philip Henson, was two days before the killing; that James Marks (on whose farm defendant was working) and defendant were out hunting horses, when he saw Henson and other boys; that he made inquiry of them about the horses; and that he and Jim Marks started to go across a creek, and Henson and his companions followed them, and threw sticks at them, and said they would kill 'that nigger' the first chance they got, and said they would settle it on Saturday.
The scene of the shooting was at or near a hog pen on [157 U.S. 675, 677] ]
Marks' farm. There was a wire fence separating the Marks place from an adjacent field. The testimony is contradictory as to whether Henson and his companions crossed the fence into the Marks farm. The Henson party had freshly-cut sticks in their hands. An altercation took place. Young Marks testified that Henson said, when the defendant asked them what they came after, they came to kill a nigger. The story told by Willie Erne, one of the Henson party,-a boy of 13 years of age,-was the clearest statement, on behalf of the prosecution, of what took place. It was as follows:
The testimony of yound Marks and of the defendant was to the effect that the Erne boy and Philip Henson crossed over the fence into the Marks yard, and made the first assault, and that defendant did not draw his pistol or shoot until he had been knocked down, and when three of the assailants were on him.
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:
By this instruction the jury were shut up, in effect, to find either manslaughter or murder. The claim of self-defense was excluded; or, rather, self-defense was eliminated, if the sticks were not 'deadly weapons.' In this we think there was error. In one sense, it may be true that sticks or clubs are not deadly weapons. Carrying them does not import any hostile intent, nor, even in view of an expected affray, a design to take life. But when a fight is actually going on, sticks and clubs mayb ecome weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by [157 U.S. 675, 680] balls from a pistol. Hence we think that the jury ought not to have been told that there 'could not be any self-defense in it,' and 'it could not be self-defense, because the injury received would not be of that deadly character or that dangerous nature that would give a man the right to slay another because of threatened deadly injury, or great bodily injury received.' Such a question as that was one peculiarly for the jury, and we think that they should have been left free to say whether the accused had not a right, when defending himself from an attack made by several persons using sticks, to consider himself in danger of life or limb. The verdict found-that of murder-is, we think, convincing that the jury were misled by this instruction.
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., [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 qeustion of self-defense, and likewise in telling them that the intentional armig 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.