delivered the opinion of the court.
1. The question of jurisdiction in this case demands a primary consideration. Although the prisoner Alberty was not a native Indian, but a negro born in slavery, it was not disputed that he became a citizen of the Cherokee Nation under the ninth article of the treaty of 1866, 14 Stat. 799, 801, by which the Cherokee Nation agreed to abolish slavery, and further agreed “that áll freedmen who have been liberated by voluntary act of their former owners or by law, as well, as all free colored persons whо were in the country at the commencement of the rebellion and are now residents therein or -who may return within six months, and their descendants, shall have all the rights of native Cherokees.” While this article of the
Duncan, the deceased, was the illegitimate child of a Choctaw Indian, by a colored woman, who was not his wife, but a slave in the Cherokee Nation. As his mother was a negro slave, under the rule
partus sequitur ventrem,
he must be treated as a negro by birth, and not as a Choctaw Indian. There is an additional reason for this in the fact that he was an illegitimate child, and took the
status
of his mother.
Williamson
v.
Daniel,
• He came, however, to the Cherokee Nation when he was about seventeen years of age, and married a freed woman, and a citizen of that Nation. It would seem, however, from such informatiоn a's we have been able to'obtain of the Cherokee laws, that such marriage would not confer upon him the rights and privileges of Cherokee citizenship, beyond that of residing and holding personal property in the Nation; that the courts of the Nation do not claim jurisdiction over such persons, either in criminal or civil suits, and they are not permitted to vote at any elections.
For the purposes of jurisdiction, then, Alberty must be treated as a member of the Cherоkee Nation, but not an Indian ; and Duncan as a colored citizen of the United States.
By Kevised Statutes, § 2145, except as to certain crimes, “ the general laws of the United States as to the punishment of crimes committed within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country;
”
and by § 2146, “ the preceding section .shall not be construed to extend to crimes committed by one Indian against the person or proрerty of another Indian, nor to any Indian committing any offence in the Indian country who has been punished by the local law of the tribe; or to any case where, by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian
By article 13 of the Cherokee treaty of July 19, 1866, 14 Stat. '799-803, the establishment of a court of the United States in the Cherokee territory is provided for, “with such jurisdiction and organized in such 'manner as may be prescribed by law : Provided.;That the judicial tribunals of the Nation shall be allowеd to retain exclusive jurisdiction in all civil and criminal cases arising within their country in which members of the Nation, by nativity or adoption, shall be the only parties, or where the cause of action shall arise in the Cherokee Nation, except as otherwise provided in this treaty.” It is admitted that the present case is not within the last exception.
By the- act of May 2, 1890, c. 182, to provide a temporary government for the Territory of Oklahoma and to enlarge the jurisdiction of the United Statеs court in the Indian Territory, 26 Stat. 81, it is provided, § 30, “ that the judicial tribunals of the Indian Nations, shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the Nation, by nativity or by adoption, shall be the only parties /” and by-§ 31, that “ nothing in this act shall be so construed as to deprive any of the courts of the civilized Nations of exclusive jurisdiction over all cases arising wherein members o.f said Nations, whether by treaty, blood or adoption, are the sole parties ; nor so as to interfere with the right аnd power of said civilized Nations to punish said parties for violation of the statutes and laws enacted by their national councils, where such laws are not contrary to the treaties and laws of the United States.”
It will be observed that while this act follows the treaty so far as recognizing the jurisdiction of the Cherokee Nation as to all cases arising in the country, in which members of the
• The real question as respects the jurisdiction in this case is as to the meaning of the words “ sole ” or only “ parties.” These words are obviously susceptible of two interpretations. They may mean a class of actions as to which there'is but one party; but as these actions, if they exist at all, are very rare, it can hardly be supposed that Congress intended to legislate with respect to them to the exclusion of the much more numerous actions to which there are two parties. They may mean actions to which members of the Nations are the sole or only parties, to the exclusion of white men, or persons other than members of the Nation; and as respects civil cases at least, this seems the more probable construction.
But the difficulty is with regard to criminal cases, to which the defendant may be said to be the only party; and, if not, as to who is the other party, the sovereignty in whose name the prosecution is conducted — in this case, the United States, or the prosecuting witness, or, in a homicide case, the person who was killed. Some light is thrown upon this by the seventh article of the same treaty, wherein a special provision is made for the jurisdiction of the United States court to be'created in the Indian Territory; and until such'court was created therein, the United States District Court, near.est to the Cherokee Nation, Avas given “ exclusive original jurisdiction of all cases, civil and criminal, wherein an inhabitant of the district hereinbefore described” (meaning the Canadian district of the Cherokee Nation) “ shall be a party, and where an inhabitant outside of said district, in the Cherokee Nation, shall be the other party, as plaintiff or defendant in a civil cause, or shall be defendant or prosecutor in a criminal case.” It is true that the homicide in this case was not committed Avithin the Canadian district, and, therefore, that this seventh article has no direct application, but it has an indirect bear
In construing these statutes in their application to erim: inal cases, and in connection with the treaty, there are but three alternative courses.
(1) T.o treat the defendant as the
sole
party ; in' which case the Indian courts would have jurisdiction, whether the victim-of the crime were an Indian or a white man. In the
Case of
Mayfield,
(2) To treat the United States as the other party to the cause; in which case the Federal courts .would have jurisdiction of all criminal- cases, except as they might be limited by the clause of Rev. Stat. § 2146, providing that such jurisdiction “ shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian.”
(3) To treat the victim of the crime, whose person or property has been invaded, as the other party ; in which' case the Federal courts would have jurisdiction in all cases in which the victim was a white man, or other than an Indian. Under this construction the word “ parties ” would really mean parties to the crime .and not simply to the prosecution of the crime.
The last proposition harmonizes better with what seems
Therе were a number of exceptions taken to- the' charge of the court, only two of which it will be necessary to discuss.
2. The eighth assignment of error is to the following instruction :
“When he” (the defendant) “is in that condition, if he was in that condition in this case, and was then attacked by Duncan, the deceased, in such a way as to dénote an intention upon the part of the deceased to take away his, the defendant’s, life, or to do him some enormous bodily injury, he could kill Duncan — when? — рrovided he use all the means in his power otherwise to save his own life from the attack of> Duncan,-or preventing the- intending harm, such as retreating as far ás he could, or disabling his adversary without killing him. That is still a duty.”
In the case of
Beard
v.
United States,
“But we cannot agree that the'accused was under any greater obligation, when on his own premises, near his dwell
In the case under consideration it appeared that Duncan, the deceased, had been paying such attentions to the defendant’s wife that it had caused them to separate, the wife living at a Mr. Lipe’s, where the killing occurred, and defendant making his home with some colored people by the name of G-raves'. Defendant himself worked during the day at Lipe’s, was frequently with his wife, and upon the evening in question had been to church with her and. taken her home to Lipe’s after the service. • She went into the house and defendant went back into the lot, where the stock was, as it was a part of his duty to look after the stock. His version of the facts wаs that while he was in the lot he saw a window in the house, which opened into his wife’s room,, raised, walked out into the yard arid .found the deceased at the window, and said to him : “ Who is that ? ” To which the deceased replied, with an oath : “You will find out who it is; ” “ and then made at me at that time. That is the first time I had seen him. there. And then I knew his voice, and he made at me as if he had something and was going to kill me, and I had this little pistol in my pocket and I run backwards toward the front yard and told him to stand off, . . . and I called Mr. Lipe, who got up and came to the door and asked'what was the matter to which defendant replied: “ This man here -was trying to get up in your window where my wife sleeps . . ■ . and then I moved away — I started to move and this fellow says
It was in this connection that the court gave the charge covered by the eighth assignment, adding thereto:
“ If a man attacks us wrongfully, if he is seeking then and there to make an attack upon us in such a way as to jeopardize life, and we can turn aside that attack without destroying his life, it is our duty to do it. It is our duty, in the first place, to get out of the way of the attack, and that is a duty springing from our own self interest, because if a man can avoid a deadly result with due regard to his own safety, is it not better for him to do it, than to rush rashly into a conflict where he may lose his life? He is doing it in the interest of his own life.. And then, aside from that, in the interest of the life of the party who attacks him, he is required to do it. Then, under this proposition, to give the defendant the benefit of it, he must have been doing what he had a right to do at the time, and while so situated he must have been attacked by Phil Duncan, the deceased, in such a way аs to indicate, from the nature of that attack, and the way he was executing it, a purpose upon the part of Duncan then and there by that conduct to take his life, or to inflict upon him some great violence : and he must have been so situated, so surrounded by danger, that he could not get out of the way of it, or he could not turn it aside by an act of less violence than what he did do. He must have exercised reasonable means, in other words, to avoid the dreadful necessity of taking human life, because the law says that he could kill, provided he use all the means in his power otherwise to save his own life.”
We
think the charge of the court in this connection is open to the same objection that was made to the charge in the case of
Beard
v.
United States.
The only difference suggested is that in that case the attack was made with firearms, and in
3. -The foui’teenth assignment of error was to the following instructions upon the subject of the flight of the accused after •the homicide :
“ You take into consideration, in other words, the facts and circumstances which led up to the killing, the facts and circumstances that transpired at the time of the killing, and you do not stop there, but you take into consideration the facts and circumstances as affecting the defendant subsequently to the killing. For instance, you take into consideratiоn the defendant’s. flight from the country — his going into another part of the country — as evidence; and you are to pass upon the question as to whether or not he has sufficiently explained away the presumption which the law says arises from flight when a man has taken human life. It is a principle of human nature — and every man is conscious of it, I apprehend — that if he does an act which he is conscious is wrong, his conduct will be along a certain line. He will pursue a certаin course not in harmony with the conduct of a man who is conscious that he has done an act which is innocent, right and proper. The truth is — and it is an old scriptural adage — ‘ that the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Men who are conscious of right have nothing to fear. They do not' hesitate to confront a jury of their country, because that jury will protect them; it will shield them, and the more light there is let in upon their case the better it is for them. "We are all conscious of that condition, and it is therefore a proposition of the law that, when a man flees, the fact that he does so may be taken against him, provided he does not explain it ¿way upon some other theory than that of his flight because of his guilt. -
“A man accused of crime hides himself, and then-absconds. From this fact of absconding we may infer the fact of guilt. This is a presumption of fact, or an argument of a fact from a fact.”
Again upon that subject:
. .' . “ flight by a defendant is аlways relevant evidence when offered by the prosecution; and that it is a silent admission by the defendant that he is unwilling or unable. to face the case against him. It is in some sense, feeble or strong as the case may be, a confession; and it comes in with the other incidents, the corpus delicti being, proved from which guilt may be cumulatively inferred.”
“Now, that is the figure that flight cuts in a case. It is a question in this case -whether this defendant has sufficiently explained it here to take away the effect of the presumption arising from flight.”
In this connection the evidence tended to show that a day or two after the crime the defendant fled from the jurisdiction of the court, went to St. Louis, and there resumed his father’s
The weight which the jury is entitled to give to the flight of a prisoner immediately after the commission of a homicide was carefully considered by this court in the case of
Hickory
v.
United
States,
Ve do not find it necessary to repeat the argument that' was made in that case, but we think it was especially misleading for the court to charge the jury that, from the fact of absconding, they might infer the fact of guilt, and that flight, “ is a silent admission by the defendant that he is unwilling or unable to face the case against him. It is in some sense, feeble or strong as thе case may be, a confession; and it comes in with the other incidents, the corpus delicti being proved from which guilt may be cumulatively inferred.” While undoubtedly the flight of the accused is a circumstance proper to be laid before the jury, as having a tendency to prove his guilt; at the same time, as was observed in Ryan v. The Peo ple, 19 N. Y. 593, “ there are so many reasons for Such conduct consistent with innocence, that it scarcely comes up to the standard of -evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances.”
While there is no objection to that part of the charge which permits the jury to take into consideration the defendant’s flight from the country as evidence bearing upon the question of his
We have found it impossible to reconcile these instructions with the rulings of this court in the two cases above cited, and are therefore compelled to
Reverse the judgment of the court helow, and remand the case with instructions to grant a new trial.