86 F. 106 | 5th Cir. | 1898
After stating the facts as above,
delivered tbe opinion of the court.
Counsel for the plain+iff in error have presented 15 alleged assignments of error, some of which are -in accordance with the rules of this court in regard to assignments of error, but many of them are altogether too prolix and argumentative, and w.e shall therefore consider the case from our own point of view, dealing only with those alleged errors clearly and specifically assigned. The evidence of Mrs. Joe Paul with regard to the declarations of the defendant made some three months prior to the homicide was improperly admitted. It was too remote and general to have any legitimate bearing on the issues to be tried. The case does not show, nor even tend to show, that the deceased, Joe Gaines, acted as a deputy'marshal, or that he was known to the plaintiff in error at any time as a deputy marshal, but rather tends to show — and that was the view of the trial judge— that Joe Gaines, in attempting to arrest the defendant prior to the homicide and afterwards at the homicide, was acting as a constable, and not as a deputy marshal. The evidence as admitted was calculated to prejudice the accused before the jury, by showing his reputation as a brawling, turbulent man. The conversations and declarations of the accused after his arrest formed no part of the res gestse, and in his behalf were inadmissible, but they were admissible against him if the prosecution saw fit to avail itself of them, and when the United States
We are not called upon to show how consonant this evidence is with the other, and, perhaps, more important, facts in the case, but it was the theory of the defense in the court below, and, as there was evidence tending to substantiate it, that theory should have been recognized by the judge in Ms charge. We therefore conclude that the requested charge, to'wit: “If the jury believe from the evidence, or have a reasonable doubt of it, that at the time of the homicide the defendant was, previous to and at the time of said homicide, in the public business place of the witness Bandy, you are instructed that defendant had the legal right: to be in said place; and if, when in said place of business, he (the defendant) was not engaged in any act or conduct that showed in itself malice towards Gaines, or a purpose to engage Gaines (the deceased) in an altercation with him. and if at said time, the defendant thus circumstanced, the deceased approached with a deadly weapon, and the defendant did not know of said approach, or of the purpose of said Gaines in making said approach, and at said time the deceased, Gaines, suddenly appeared at the door of said place with a deadly weapon, and without warning to defendant of his presence and purpose, he, with said weapon, fired or attempted to fire upon the defendant-,- — then you are instructed that the defendant had the right to shoot and kill deceased, and should be acquitted,” — was proper to be given to the jury, and applicable to the case under consideration. The judge of the lower court apparently was of the same opinion, but excused himself from giving it, and refused the same, because it was incorporated in the main charge. We seek for the requested instruction, or its equivalent, in the main charge, but without success. There is in the main charge, as shown in the statement of this case, an instruction as to the law of self-defense, in which the general rule is correctly stated, but the instruction is not made specifically applicable to
The charge of the court was objected to in the lower court, and the objections are again urged here, upon the grounds that, while it elaborates and impresses upon the jury the theory of the prosecution, it does not sufficiently give the rules of law apnlicable to the theory of the defense, which theory was based upon evidence in the case; that it tended to impress the jury with the proposition that, if ill feeling or malice existed upon the.part of the plaintiff in error towards Commissioner Davidson, it necessarily included enmity towards the deceased, and served to make the enmity towards Davidson a standard, or test, determining malice, hot blood, and evil design towards the deceased; and that, if there existed in the mind of the plaintiff in error prior to and at the time of the homicide an intention to provoke an altercation with the deceased, with a.view of getting.a chance to kill him, then the deceased, Gaines, had a right, as a peace officer, to come suddenly upon the plaintiff in error, and without warning, or any attempt to make an arrest, fire upon and kill him. These- objections, while perhaps not urged in the lower court in such a way as to fully authorize their consideration in this court, are serious objections to the charge as given; and, if not treated here as constituting reversible error, it must not be understood that in this court all the propositions of the charge as given, and not specifically held ground for reversal, are approved; and particularly is this the case with regard to the method in which, conceding all the facts of the case as claimed on the trial by the prosecution, the deceased, Gaines, undertook to arrest the plaintiff in error. While the conditions of border society may be such that peace officers, authorized to arrest disturbers of the peace with or without warrants, are frequently compelled to shoot down on very short notice brawlers and disturbers who are armed with deadly weapons, yet we are not prepared to hold that in law such shooting without warning is justi
The indictment alleges as follows: “That said Joe Gaines, and he, ¡he said John Stevenson, being then and there white persons, and not Indians, nor citizens of the Indian Territory.” The proof shows that Joe Gaines was a white man, and not: a citizen of the Indian Territory, but further shows that John Stevenson, the plaintiff in error, had not only married a full-blooded Chickasaw, and was living with, her as his wife, but that he was a citizen of (.he Chickasaw Nation, having been adopted by said Nation. The plaintiff in error sought to avail himself of this variance between the proof in the case and the indictment in motions for a new trial and in arrest of judgment. This question was disposed of by the trial judge, in his charge to the jury, as follows:
“There is a question in this ease in regard to the citizenship of the parties, tt is shown by the testimony that Stevenson had married a lady that was a Chickasaw, I believe, residing in the Indian Territory. The evidence further shows that .Toe Gaines was a white man, and not a citizen of the Indian Territory, although the bill of indictment alleges tha t they were both white persons, noncitizens of the Indian Territory; 'that being a .-Jurisdictional matter, when the evidence establishes that either was a citizen of the United States, this court-lias jurisdiction, so far as that point is concerned.”
We agree on this point wiih the trial judge. The averment in the indictment that Joe Cuines was a white person, and not a citizen of the Indian Territory, having been established by the evidence, the court had jurisdiction iu the case, and the averment as to the color and citizenship of John Stevenson became and was surplusage, and no evidence was necessary to be given to prove it. '
There are other rulings of the trial court discussed in the assignment of errors and the briefs of counsel, but, from the view we take of the ease, they need not be considered. The admission of the evidence of '.Mrs. Joe Paul, the reieetion of the evidence of Alexander Smith, and the refusal cf the court to give the charge relating to the law of self-defense, as requested by the plaintiff in error, were errors which require us to reverse the verdict and judgment of the lower court, and remand the cause with instructions to set aside the verdict and judgment, and award a new trial, and it is so ordered.
SWAYNE, District Judge, dissents.
